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Gay troops challenge DOMA in federal lawsuit

Service members seeks partner benefits from U.S. military

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Gay troops and veterans joined the fight against the Defense of Marriage Act in court on Thursday by filing new litigation challenging the law on the basis that it precludes service members with same-sex partners from receiving crucial benefits.

Servicemembers Legal Defense Network filed the lawsuit, called McLaughlin v. Panetta, behalf of eight plaintiff couples in the District Court of Massachusetts. In addition to challenging DOMA, the litigation also challenges Title 10, Title 32 and Title 38 of U.S. Code, which prevents the military from providing benefits to the partners of gay troops.

Aubrey Sarvis, SLDN’s executive director, said during a news conference at the National Press Club that troops involved in the lawsuit are “seeking equal recognition, benefits and family support for their same-sex spouses that the services and the Department of Veterans Affairs provides to their straight married peers.”

“The case we are bringing is about one thing, plain and simple,” Sarvis said. “It’s about justice for gay and lesbian service members and their families in our armed forces rendering the same military service, making the same sacrifices and taking the same risks to keep our nation secure at home and abroad.”

Federal law prohibits the U.S. government from providing numerous benefits to gay troops. According to SLDN, among them are health insurance benefits, surviving spouse benefits and the issuance of military identification cards.

The lead plaintiff is Army Maj. Shannon McLaughlin, a judge advocate general who serves in the Massachusetts National Guard as chief of legal assistance and is a judge advocate general. She has served for 13 years and is married to her partner of more than three years, Casey McLaughlin. The two are raising ten-month old twins: Grace and Grant McLaughlin.

“For us, this inequity means that Casey is not eligible for health insurance and is unable to come onto post to make use of facilities services and family support that otherwise would be available if we were of the opposite sex,” Shannon McLaughlin said. “It boils down to this: we’ve been serving our country too long, working too hard and sacrificing too much to see our families denied the same recognition, support and benefits as our straight, married counterparts.”

Another plaintiff is Capt. Stephen Hill, an Army reservist of 18 years who gained notoriety after FOX News played his video question on “Don’t Ask, Don’t Tell” during a Republican presidential debate last month. Hill was booed by the audience, which sparked controversy over why none of the candidates condemned the booing while on stage.

Joshua Snyder, Hill’s spouse, said during the news conference FOX News didn’t play all of Hill’s question and the service member went on to ask about whether the GOP candidates would institute partner benefits for gay troops.

“Those questions went unanswered that night, and they will not be answered by the political process for quite some time,” Snyder said. “So, today, Steve and I have elected to take another route, the judicial route. We believe strongly that DOMA and laws like it ignore our families and treat us less than our [straight] married counterparts. They are an injustice and that’s why we’re here today.”

High-ranking members of the Obama administration are named in the lawsuit: U.S. Attorney General Eric Holder, Defense Secretary Leon Panetta and Secretary of Veterans Affairs Eric Shinseki.

Shin Inouye, a White House spokesperson, deferred comment on the specifics of the litigation to the Justice Department as he reiterated President Obama’s support for legislation to address the issue.

“I would note that the President has long called for a legislative repeal of the so-called Defense of Marriage Act,'” Inouye said. “He is proud to support the Respect for Marriage Act, which would take DOMA off the books once and for all. This legislation would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as straight couples.”

The Obama administration has stopped defending DOMA in court, so it’s likely the Justice Department will side with the plaintiffs in this case. Spokespersons for the departments involved in the litigation said the lawsuit remains under review.

Eileen Lainez, a Pentagon spokesperson said, “We will carefully evaluate the complaint and we will consult [the Justice Department.] In the meantime, we will continue to follow the law.”

Tracy Schmaler, a Justice Department spokesperson, said her department is “reviewing the complaint.”

Randy Noller, a VA spokesperson, said, “Once an appeal is filed, VA lawyers will analyze the legal arguments made by the appellant and respond appropriately in its briefs.”

Serving as SLDN’s pro-bono counsel in the case are Abbe Lowell and Christopher Man, attorneys at Chadbourne & Parke.

During the news conference, Man said previous rulings against DOMA in Massachusetts in will help in moving the litigation forward. A district court in the state ruled against the anti-gay law in two separate cases last year.

“A lot of the work that was necessary for us to move forward has already been done in that court,” Man said. “That court has already briefed the issues; they’re familiar with it. So, it made sense to go ahead and file it rather than reinvent the wheel before another court.”

Asked about the timeline for the lawsuit, Man said he plans to file a motion for summary judgment soon and hopes the district court will rule within “a few months.”

“The court has already ruled on the constitutionality of DOMA, it wouldn’t be very hard for it to apply that same analysis to our case,” Man said. “And because the president and the attorney general have indicated they will no longer be defending DOMA, it shouldn’t be must of a contest.”

The litigation is one among several lawsuits challenging DOMA that are making their way through the judicial system. In two cases, Gill v. U.S. Office of Personnel Management and Commonwealth of Massachusetts v. U.S. Department of Health & Human Services, plaintiffs were set to file a reply with the U.S. First Circuit of Appeals on the same day that the SLDN litigation was initiated. Another case, Pedersen v. OPM, has been filed in the U.S. District Court in Connecticut.

Gay & Lesbian Advocates & Defenders filed the Gill and Pedersen cases. Mary Bonauto, GLAD’s lead attorney for cases, responded to the lawsuit by saying her organization empathizes with the troops in the McLaughlin case.

“We have enormous respect and empathy for the service men and women being hurtby DOMA, and for all families hurt by DOMA,” Bonauto said. “Those couples are more great examples of how DOMA’s double standards make no sense. DOMA violates the Constitution that our menand women in the military are risking their lives to uphold.”

Bonauto added, “We believe the best way to end the harm is through getting a positive appellate ruling as soon as possible, and we are working hard to strike the blow that will end DOMA in our Gill case.”

At the news conference, Sarvis said he’s held conversation with other groups involved in DOMA litigation, but added they’ve been “very brief.”

“I wish we had more time to consult with them, but we were on a track, and, frankly, I was not aware that today was an important day for them with the respect to their briefing before the Court of Appeals,” Sarvis said. “But at the end of the day, we share the same objective here. I think we want to be in the best venue for all the plaintiffs, whether it’s the plaintiffs in Massachusetts in the Gill case or here in the McLaughlin case.”

The SLDN lawsuit also isn’t the only pending case that involved gay service members seeking partner benefits. Carmen Cordova, a Navy veteran who married her spouse in Connecticut last year, filed her own lawsuit earlier this month in the Court of Veterans Claims. Cordova reportedly applied for an increase in her monthly disability compensation after she was newly married, but was denied on the basis of federal law.

SLDN has filed the lawsuit as it and other organizations are pushing the Pentagon to make changes administratively to offer other benefits to gay troops. Among the benefits in this category are making same-sex married couples eligible for joint duty assignments, family center programs and military family housing.

As this effort is underway, Sarvis said litigation is necessary because federal law prohibits “big ticket” benefits from going to gay troops.

“That’s why we’ve brought this constitutional legal challenge to DOMA and to those three titles [of federal law],” Sarvis said. “The big ticket items are the ones that we are outlining in the suit.”

The Pentagon’s Lainez said the issue of providing certain benefits to service members with same-sex partners remains under review.

“In connection with ‘Don’t Ask, Don’t Tell’ repeal, the Defense Department is engaged in a careful and deliberate review of the possibility of extending eligibility for benefits, when legally permitted, to other individuals including same-sex partners,” Lainez said.

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National

National LGBTQ blood donation drive underway

‘Summer of Giving’ campaign to promote awareness of new donor guidelines

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Gay men are eligible to donate blood after decades of being banned. (Photo by Belish/Bigstock)

GLAAD, which describes itself as the world’s leading LGBTQ media advocacy organization, and America’s Blood Centers, a national organization of community-based independent blood donation centers, announced on May 22 they have launched an LGBTQ supportive “Summer of Giving” national blood donation drive campaign.

The announcement says the campaign is aimed at encouraging “businesses to host blood drives and all eligible individuals to donate blood in support of the recent FDA eligibility changes that promote fairness and inclusivity in the donation process while maintaining the safety of the blood supply.”

The joint announcement was referring to the final revised blood donation rules issued in May 2023 by the U.S. Food and Drug Administration (FDA) that replaced a previous policy requiring men who have sex with men to abstain from sex for three months before they would be eligible to donate blood.

The previous policy was among the gradual changes made by the FDA from its original policy in the 1980s of automatically banning gay and bisexual men from donating blood due to their perceived risk of HIV infection. LGBTQ activists called that policy discriminatory because it banned all gay and bisexual men from donating blood even if they were not as individuals at risk for HIV infection.

The new policy, adopted in May 2023, according to a statement released by the FDA, put in place a screening process that asks all prospective donors regardless of their sexual orientation to answer a series of individual, risk-based questions to determine their eligibility for donating blood.

The FDA statement said implementation of the new policy “will represent a significant milestone for the agency and the LGBTQI+ community” as stated by Dr. Peter Marks, director of the FDA’s Center for Biologics Evaluation and Research.

“The ‘Summer of Giving’ is a celebration of the LGBTQ community and decades of work to remove the stigma too many potential donors have to endure,” said GLAAD President and CEO Sarah Kate Ellis in the joint statement. “Removing discriminatory barriers and following facts and science will ease the critical national blood shortage,” Ellis said, adding, “This campaign sends a long-needed message that LGBTQ people are welcome and can generously contribute to their communities to help save lives.”

Kate Fry, CEO of America’s Blood Centers, said in the statement that her organization is proud to join GLAAD to promote the facts surrounding the FDA’s change in blood donor policy, which she said, “prioritizes the safety of the blood supply while bringing more equality to the donation process.”

Fry added, “The Summer of Giving campaign is a unique opportunity for individuals and businesses to donate blood and host blood drives in support of a new era of blood donor eligibility. Together we can help save lives during a time of critical need for the blood community.”

 The joint statement announcing the LGBTQ supportive blood drive says it would take place from May 28, 2024, through National Blood Donation Day on Wednesday, Sept. 4, 2024, “in recognition of the critical need for blood donations during the summer months.” According to the statement, “Despite the ongoing demand for blood products, donations typically decline during this period due to travel and the lack of school-based blood drives.”

Under the revised FDA blood donation policy, as was the case with the previous policy, anyone who tests positive for HIV is not eligible to donate blood. The new policy includes these restrictions, which apply to everyone regardless of their sexual orientation or gender:

• Any individual who has had a new sexual partner in the past three months and has engaged in anal sex in the same period is deferred for three months from the most recent sexual contact from donating blood.

 • Any individual who has had more than one sexual partner in the past three months and has engaged in anal sex during that same period is deferred for three months from the most recent sexual contact.

• Any individual who has taken any oral antiviral medication to prevent HIV (PrEP or PEP) is deferred for three months from the most recent dose. These medications may delay detection of HIV and result in false negative test results.

• Any individual who has taken any long-lasting antiviral medication by injection to prevent HIV (PrEP or PEP) is deferred for two years from the time from the most recent injection. These medications may delay detection of HIV and result in false negative test results.

• Any individual who has ever taken any mediation (i.e., ART) to treat an HIV infection is permanently deferred.

GLAAD and America’s Blood Centers say further details about the new FDA blood donation policy and to find the nearest community blood center, interested persons should access glaad.org/tag/summer-of-giving

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California

Effort behind Calif. ballot measure to limit transgender youth’s rights fails

Protect Kids California failed to collect enough signatures

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Protect Kids California CEO Jonathan Zachreson, right, with Republican Florida Gov. Ron DeSantis and an unnamed delegate at the California GOP convention in Anaheim, Calif., on Sept. 29, 2023. (Photo courtesy of Zachreson’s Facebook page)

The effort by the anti-LGBTQ conservative group Protect Kids California, headed by Roseville school board member Jonathan Zachreson, to collect some 550,000 valid signatures to place a transphobic transgender youth proposal on the Nov. 5 ballot has failed.

In a press release on Tuesday, the deadline set by the California secretary of state, the group claimed it had gathered more than 400,000 signatures, falling short of the requisite threshold number for inclusion on the ballot.

Protect Kids California submitted the proposed ballot initiative — presented as the “Protect Kids of California Act of 2024,” last September. The proposed ballot initiative would have:

  • Forced outing of transgender youth to their parents, ensuring that trans kids cannot have safety or privacy in schools if they are not ready to come out to family. Often these policies also include violations of privacy for the student when they discuss their gender identity with school counselors.
  • Banning of transgender youth from sports that match their gender identity, stigmatizing them and often forcing them out of sports altogether. Notably, these provisions typically fail to differentiate between high-stakes elite competitions and casual middle school teams. They also generally don’t provide for pathways to participation like hormone therapy, a method that has been researched and employed to address concerns of potential “unfair advantages” in competitions. California, which allows youth to access gender affirming care, will have youth who never underwent the puberty of their assigned sex at birth who would also be banned under this provision.
  • Banning gender affirming care for trans youth shown to be lifesaving. Gender affirming care is associated with a 73 percent reduction in suicidality and over 50 studies assembled by Cornell University show its benefits. California is one of several states that has recently moved to protect transgender youth and their medical care, and such a restriction would impact a large number of transgender kids in the state.

“We are relieved that anti-LGBTQ+ extremists have failed to reach the required signature threshold to qualify their anti-transgender ballot initiatives to the November 2024 ballot. Equality California will continue to advocate for the rights of LGBTQ+ youth everywhere, and push back against any and all efforts by extremist groups who seek to discriminate against them,” said Equality California Executive Director Tony Hoang. “To every LGBTQ+ youth in California: Know that you are loved and valued.”

The anti-LGBTQ group placed partial blame for the failure on California Attorney General Rob Bonta, who the group had sued over the title and summary he assigned to its ballot measure that would strip rights from trans minors.

The Bay Area Reporter noted the Liberty Justice Center filed a lawsuit on Feb. 13 in Sacramento County Superior Court on behalf of Protect Kids California that alleged Bonta’s personal beliefs led to a biased title and summary. Therefore, the center contended the ballot measure proponents should be given 180 additional days for signature gathering without discounting signatures already collected.

“Respondent [Bonta] has demonstrated that he personally, and in his official capacity, is opposed to any kind of notification by a public school to a parent or guardian that his or her child is exhibiting signs of gender dysphoria when the child asks the school to publicly treat him or her as the opposite sex with a new name or pronouns, and to allow the child to use the sex-segregated facilities of the opposite sex,” claimed the groups in their lawsuit.

But a Sacramento Superior Court judge sided with Bonta in a ruling that was first issued tentatively on April 19 and was made final on April 22. Judge Stephen Acquisto ruled that Bonta’s title and summary are accurate.

“Under current law, minor students have express statutory rights with respect to their gender identity,” Acquisto stated. “A substantial portion of the proposed measure is dedicated to eliminating or restricting these statutory rights … The proposed measure would eliminate express statutory rights and place a condition of parental consent on accommodations that are currently available without such condition.”

“The proposed measure objectively ‘restricts rights’ of transgender youth by preventing the exercise of their existing rights. ‘Restricts rights of transgender youth’ is an accurate and impartial description of the proposed measure,” Acquisto added.

The attorney general’s office has some leeway when it comes to determining ballot titles, the judge noted.

In a statement provided to the Bay Area Reporter on April 24, after news that the decision had been made permanent, Protect Kids California attorney Nicole Pearson stated, “The mental gymnastics used to justify this prejudicial title and summary are not only an egregious abuse of discretion that entitles our clients to an appeal, but a chilling interpretation of law that jeopardizes the very foundation of our constitutional republic. We are reviewing our options for an appeal of these clear errors and will announce a decision shortly.”

Additional reporting by the Bay Area Reporter.

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Target employees flag concerns over Pride merchandise decisions

Company’s 2024 collection dramatically scaled back

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Target store (Photo by Jonathan Weiss via Bigstock)

When Target Corp. was hit with an unprecedented wave of hate over its 2023 LGBTQ Pride month merchandise last summer, plans for the 2024 collection were already underway and team members were looking to leadership for guidance. 

Target employees with knowledge of the matter, who spoke with the Washington Blade on the condition of anonymity, said the process leading up to Target’s announcement a few weeks ago of plans to dramatically cut back its Pride collection was haphazard and reactive from the start. 

They said that the company’s commitment to supporting LGBTQ guests and employees feels hollow, considering leadership’s failure to move toward strategies for selling gender-affirming apparel and merchandise year-round along with decisions to curtail internal Pride month celebrations. 

First introduced in 2013, Target’s Pride collection quickly grew to become a profitable example of the company’s heritage moments offerings, collections that are sold each year to mark observances like Black History Month and National Hispanic Heritage Month.

Even as the COVID pandemic surged in the summer of 2020, demand remained high, the employees noted, “a real indication” of the sales potential for Pride apparel and merchandise irrespective of whether parades, gatherings, and in-store shopping are happening. 

However, Target planned for just $5 million in sales this year for Pride month, about a tenth of that which might be forecast based on precedent.

Amid reports last summer of an online boycott campaign and in-store incidents in which employees were allegedly made to feel unsafe by negative guest reactions to the 2023 Pride collection, Target announced it would move the merchandise to the back of some stores located in the southeastern U.S. 

The employees agreed the move “didn’t feel great,” but the team accepted the company’s decision as a temporary solution to get through the chaos — while communicating the need for “our leaders to be really clear with us [about] what we can and cannot do” in 2024 “so that we can deliver the best profitable strategy possible.” 

Around this time, they said, communication became siloed. Requests for more information about in-store confrontations were denied over privacy and safety concerns, while some employees and other social media users flagged that many of the videos purporting to show guests’ outrage over LGBTQ-themed merchandise were several years old. 

Staff asked for details in the first place, the employees said, because “We were like, ‘OK, well, let us segment around these places that are perceived as dangerous’” to make nuanced and narrowly tailored decisions about when and where to make cuts. 

Ultimately, the number of products offered for Pride in 2023 was slashed by the time the collection was launched, and then again by nearly 50 percent, they said. 

Target organized a town hall event in July. Invited to speak were Executive Vice President and Chief Growth Officer Christina Hennington and Executive Vice President and Chief Food, Essentials and Beauty Officer Rick Gomez, both of whom are LGBTQ. 

One employee said they were left with the impression that staff should make peace with the decisions to cut Pride merchandise because the meeting was led by the company’s senior LGBTQ leadership, who announced “they were going to pull back on all heritage moments.” A second employee who was not in attendance agreed this was the message relayed to them. 

Leading into next year, the employees said teams informed leadership that they would “segment the hell out of this 2024 assortment to get the right things in the right stores, if [the company is saying] that there’s a subset of stores that need to serve a different function or guest need” — just as decisions are made to, for example, feature more swimwear items in Miami than in Seattle. 

Folks were broadly in agreement over this strategy, the employees said, but “cut to 2024, we’re sending [the Pride collection] to half the stores” — a decision that was reached “a couple of months ago when product had to be committed to stores.” 

Target announced that the decision was based on historical sales, in a statement that also reaffirmed the company’s commitments to supporting the LGBTQ community year-round. 

According to the employees, however, the move did not accurately reflect “guest demand” for Pride apparel and merchandise. 

Going back to 2023, one source said, apparel and accessories leaders initially provided direction to reduce the planned sales by approximately 19 percent to reflect what was happening elsewhere in the apparel business.

The team agreed the figure was “really close to where we need to be” and sought to build a strategy to maximize sales, learning from past mistakes that were made “in all of our heritage moments — and we saw this in Black History Month last year — of spreading the goods out too equally everywhere” rather than in the stores where it was selling out.  

The employees said the team responsible for the Black History Month collection introduced the idea of segmenting product between that which is designed for the intended audience versus that which could be worn by everyone, allies included, which feels noticeably absent from the 2024 Pride collection that is available in select stores and online today. 

With respect to the in-store experience, a similar approach would apply, they said. 

For instance, the original idea for this year’s Pride collection was “a four-tier strategy,” which built upon established precedent for heritage moments merchandise. 

On one end of the spectrum is a “full-blown experience, that kind of delivers and addresses all audiences.” And then a more narrowly tailored assortment would be offered for stores that may have space constraints or less foot traffic, along with another that might be “the most ally-friendly, or the most conventional,” and “versions for what we call our small-format stores.” 

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