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Gay troops tell personal stories at Pentagon Pride

Event marks first such celebration since ‘Don’t Ask’ repeal

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The personal story of a gay service member warmed the hearts of attendees during a panel discussion at the first ever Pentagon event celebrating June as Pride month.

Marine Corps Capt. M. Matthew Phelps, who serves as a commanding officer at the Marine Corps Recruit Depot in San Diego was among the three panelists who talked about the difficulties of serving in the closet before “Don’t Ask, Don’t Tell” was lifted.

Phelps said the situation was particularly difficult for him in 2007 when he was deployed to Iraq and fellow Marines would meet on Saturday to smoke cigars, watch movies and talk about their families at home.

“I sat there in the back of the room not talking to anybody because not only was it so hard to have left somebody at home — just like it was hard for everybody else — but when everyone was getting together and growing closer as a unit, by virtue of the fact that I wasn’t allowed to say anything, I was actually growing more distant from my unit,” Phelps said.

After graduating from the University of Rochester in November 2001 with a degree in applied music, Phelps said he enlisted in the Marine Corps after the terrorist attacks on Sept. 11, 2001, because he felt the need to serve his country. But Phelps said “Don’t Ask, Don’t Tell” was a strain on him until the ban was lifted on Sept. 20.

“I went into work on the 20th of September thinking that my life was going to change, and I went in and I sat down at my desk and I braced myself on the desk waiting for everyone to come and ask me if I was gay,” Phelps said. “Believe it or not, nobody did. I didn’t get any email. I didn’t get any phone call. In fact, the phone didn’t even ring. I was waiting — saying, ‘Please somebody talk to me today’ — because I felt like I was going to work for the very first time. For almost 10 years, Matthew was going to work as a Marine in uniform doing my job, doing the job that I thought I had been doing for 10 years, but I had only been half doing.”

Phelps was among the attendees at the White House Pride reception earlier this month where for the first time openly gay service members could participate while wearing their uniforms thanks to “Don’t Ask, Don’t Tell” repeal.

Others on the Pentagon panel, which was moderated by Pentagon Director of Press Operations Navy Capt. Jane Campbell were Gordon Tanner, the Air Force’s principal deputy general counsel, and Brenda “Sue” Fulton, a member of the board of visitors at the U.S. Military Academy at West Point and communications director for OutServe. All three panelists — Phelps an active duty troop, Tanner a civilian and Fulton a veteran — were gay and selected by word of mouth recommendations.

Tanner said he was supposed to distribute a list of benefits available to gay troops, but opted instead to encourage gay service members to serve as openly as possible because only that can help straight allies bridge their understanding of LGBT people.

“What I really want to talk about today is what each of us can do in our own day-to-day lives to make a difference,” Tanner said. “First of all, and most importantly, we need to be as visible as we can be. Everybody has a different comfort level. Everyone is in a different place. Let me encourage you to be as open and honest as you can possibly be.”

Fulton talked about the commitment she saw from straight allies in the military who wanted to make sure the transition to open service went smoothly and gay troops weren’t harmed. She described a commitment ceremony that took place over the weekend involving gay couples who served in the military.

“In the back of the church … was another chaplain, a senior chaplain Air Force O-6, Southern Baptist,” Fulton said. “I asked him why he was there and he said, ‘I just want to make sure everything goes smoothly for my airmen. I just want to make sure there aren’t any problems.'”

The one-hour event marks the first time that a Pride celebration has taken place for Defense Department personnel within the Pentagon. This is the first Pride month to have taken place since “Don’t Ask, Don’t Tell” was lifted from the books last year.

More than 350 attendees filled the Pentagon auditorium to capacity. The event was broadcast on the Pentagon channel and Tanner said during his remarks that troops as far away as Afghanistan were interested in watching a video of the event.

Attendees were made up of civilian Defense Department workers, service members who came in their uniforms and LGBT advocates who helped lead the way for “Don’t Ask, Don’t Tell” repeal. The program began after service members “presented the colors” and video messages were shown from President Obama and Defense Secretary Leon Panetta.

Defense Department General Counsel Jeh Johnson (Washington Blade file photo by Michael Key)

Delivering the keynote address at the event was Jeh Johnson, the Pentagon’s general counsel and co-chair of the Pentagon working group that wrote the report leading the way for legislative repeal of “Don’t Ask, Don’t Tell” in 2010. He spoke mostly of the process by which he and fellow co-chair Army Gen. Carter Ham, then commanding general of U.S. Army Europe, evaluated the risk of lifting the military’s gay ban.

While they pursued the task at hand without any predetermination on whether the ban should be repealed, Johnson said the group heard stories from gay service members who were eagerly awaiting an end to “Don’t Ask, Don’t Tell.”

“In communications with gay and lesbian current and former service members, we repeatedly heard a patriotic desire to serve and defend the nation subject to the same rules as everyone else,” Johnson said. “In the words of one gay service member, ‘Repeal would simply take a knife out of my back. You have no idea what it is like to serve in silence.'”

As a result of the process, Johnson said the institution of open service in the military has brought some isolated incidents, but “almost no issues or negative effects associated with repeal on unit cohesion, including within warfighting units.”

Even during his remarks, Johnson wouldn’t reveal his personal views on LGBT rights — saying he thinks as Pride is celebrated participants should remember the military is about Americans from a variety of backgrounds coming together to serve the country.

“Within the military, events such as this must occupy a different and qualified place because in the military, individual personal characteristics are subordinate to the good of the unit and the mission — service above self,” Johnson said. “From all that we learned in 2010 about the struggles and the sacrifice to remain in the military, I believe gay men and women in uniform readily agree with this.”

Johnson also said the Pentagon is examining ways to extend additional benefits to gay troops now that open service is in place. Pentagon officials have said they’ve been looking at these possible benefits since “Don’t Ask, Don’t Tell” was lifted last year.

Servicemembers Legal Defense Network and other LGBT groups have been pushing for benefits such as joint duty assignments, military family housing as well as access to certain family programs and free legal services. All are deemed by advocates to be within the authority of the Pentagon even with the Defense of Marriage Act in place.

“Going forward, the personnel and readiness community is now in the midst of reviewing which military family benefits can be extended to the partners and other family members of gay and lesbian service members,” Johnson said. “The repeal of ‘Don’t Ask, Don’t Tell’ exposes certain inequalities between similarly situated couples in the military community. This concerns many of our leaders. On the other hand, we must comply with current law, including the Defense of Marriage Act.”

Aubrey Sarvis, SLDN’s executive director, was among the attendees at the celebration and said he wished Johnson had “been more specific” in his remarks with regard to benefits.

“It’s just taking an inordinate amount of time to bring closure on this,” Sarvis said. “So, the day for a decision and an announcement by Secretary Panetta is here. In fact, it’s overdue.”

Sarvis added the decision to extend these benefits to gay troops should be resolved “within a matter of days,” but predicted more time will pass before an announcement is made.

Despite qualms about the lingering issue of benefits, Sarvis noted the historic nature of the Pride event.

“I think for all of these things to have happened in the past year — having finality on repeal, being here to celebrate — is something that many, many people could not have anticipated, so, yes, this is very much a historic occasion,” Sarvis said. “I think a number of people here are still pinching themselves.”

A number of gay service members who attended said they were elated being able to participate in the first Pride event at the Pentagon after the repeal of “Don’t Ask, Don’t Tell.”

Army Sgt. Bryan LaMadrid, 22, who’s gay, said coming to the event was particularly emotional for him.

“I’m stationed up at Ft. Meade right now, but I’m driving here and I’m kind of tearing up and have shivers going down my back and my neck because two years ago, you would have never imagined this, and now it’s happening this year,” LaMadrid said.

Navy Lt. Kevin Naughton, 32, who’s gay, was among those who helped plan the event and said “it was a big deal” to obtain approval from Panetta’s office to plan the Pride celebration.

“It was just an amazing process that we’ve gone through from going from repeal all the way to being able to have an event where we’re treated equally at work,” Naughton said.

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Biden names civil rights veteran to U.S. Education Dept.

Catherine Lhamon’s portfolio will include LGBTQ rights, sexual misconduct, racial discrimination

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Nominee for Assistant Secretary of the Office for Civil Rights at the U.S. Department of Education Catherine Lhamon. (Photo public domain))

The White House announced Thursday that President Joe Biden has nominated Catherine Lhamon to serve as the Assistant Secretary of the Office for Civil Rights at the U.S. Department of Education.

Lhamon currently serves as a Deputy Assistant to the President and Deputy Director of the Domestic Policy Council for Racial Justice and Equity at the White House, where she manages the President’s equity policy portfolio. She is a former attorney for the American Civil Liberties Union, (ACLU) and served as chair of the U.S. Commission on Civil Rights from 2017 to 2021.

She has also served as Legal Affairs Secretary to California Governor Gavin Newsom.

Her portfolio at Education, where she previously served in the same position under former President Barack Obama, will include LGBTQ rights, sexual misconduct and racial discrimination in the nation’s K-12 schools, universities and colleges. Lhamon was Assistant Secretary for Civil Rights at the Department of Education, to which President Obama nominated her and the Senate confirmed her in 2013.

“I am thrilled that President Biden is nominating Catherine Lhamon to serve as Assistant Secretary of the Office for Civil Rights at the U.S. Department of Education. Catherine has devoted her career to ensuring equity is at the core of all her work,” U.S. Secretary of Education Miguel Cardona said in a statement released by his office Thursday.

“She has a strong record of fighting for communities of color and underserved communities, whether as the current Deputy Director of the Domestic Policy Council, the former chair of the U.S. Commission on Civil Rights, or as a civil rights educator at Georgetown University. We are thrilled to have Catherine serving as Assistant Secretary for Civil Rights and know she will continue to fight for fairness, equity, and justice for all of America’s students.”

Lhamon has also litigated civil rights cases at National Center for Youth Law, Public Counsel Law Center, and the ACLU Foundation of Southern California.  Lhamon taught federal civil rights appeals at Georgetown University Law Center in the Appellate Litigation Program and clerked for the Honorable William A. Norris on the United States Court of Appeals for the Ninth Circuit.

“Catherine Lhamon is the right choice to lead the Department of Education’s civil rights division at such a critical time for the country and the agency. There is much work to do in order to roll back the harmful policies and legacies of Betsy DeVos, from her attacks on transgender students to her unconscionable revocation of discriminatory discipline guidance and rewrite of Title IX rules,” Adele Kimmel, Director of the Students’ Civil Rights Project at Public Justice told the Blade in an email.

“During her previous tenure in the same job, Catherine embraced equality, enforced Title IX and ensured students had an ally inside the federal government. She will do so again, and the Senate should move to quickly confirm her so she can begin the work of restoring the Department’s commitment to protecting the civil rights and dignity of students and implementing the Biden Administration’s pledge to undo the damage that DeVos has done,” Kimmel added.

Born in Virginia and raised in California, Lhamon graduated from Amherst College and Yale Law School. Lhamon and her husband and two daughters are transitioning between California and Maryland.

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Family of transgender woman who died in ICE custody sues federal government

Roxsana Hernández passed away in N.M. in 2018

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A picture of Roxsana Hernández, a transgender Honduran woman with HIV who died in U.S. Immigration and Customs Enforcement custody in 2018, hangs on a wall inside the offices of Colectivo Unidad Color Rosa, an LGBTQ advocacy group in San Pedro Sula, Honduras. (Washington Blade photo by Michael K. Lavers)

 

The family of a transgender woman with HIV who died in U.S. Immigration and Customs Enforcement custody in 2018 has sued the federal government.

The Transgender Law Center and two immigration lawyers — Daniel Yohalem and R. Andrew Free — in 2020 filed a lawsuit in U.S. District for the District of New Mexico against five private companies who were responsible for Roxsana Hernández’s care.

The lawsuit named Management and Training Corporation, LaSalle Corrections, Global Precision Systems, TransCor America and CoreCivic as defendants. The Transgender Law Center, Yohalem and Grant and Eisenhofer Law on Wednesday petitioned the court to add the federal government to the lawsuit.

“This amended complaint adds the United States, including U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and the United States Department of Homeland Security (DHS) to the list of entities who had a direct role in Roxsana’s death,” said the Transgender Law Center in a press release.

Hernández, who was from Honduras, entered CBP custody on May 9, 2018, when she asked for asylum at the San Ysidro Port of Entry in San Diego. She arrived at the Cibola County Correctional Center, a facility in Milan N.M., that CoreCivic operates, a week later.

Hernández was admitted to Cibola General Hospital in Grants, N.M., shortly after she arrived at the privately-run detention center. Hernández died at Lovelace Medical Center in Albuquerque, N.M., on May 25, 2018.

The lawsuit, among other things, alleges Management and Training Corporation personnel “denied Roxsana and her fellow detainees food, water and restroom access throughout their transfer” from California to a facility in San Luis, Ariz., that LaSalle Corporations operates. The lawsuit also states Hernández did not receive necessary medical care from LaSalle Corporations, Global Precision Systems and TransCor personnel as they transported her to the Cibola County Correctional Center.

CoreCivic officers, according to the lawsuit, delayed Hernández’s medical care once she was hospitalized.

An autopsy the New Mexico Office of the Medical Investigator performed concluded Hernández died from Castleman disease associated with AIDS.

A second autopsy that former Georgia Chief Medical Examiner Kris Sperry performed at the Transgender Law Center’s request concluded the cause of death was “most probably severe complications of dehydration superimposed upon HIV infection, with the probable presence of one or more opportunistic infections.” The second autopsy also found “evidence of physical abuse” that included bruising on Hernández’s rib cage and contusions on her body.

“Defendants’ discriminatory, negligent, and reckless acts and omissions: (a) caused Roxsana to suffer severe emotional and physical distress; (b) created an unreasonable risk that Roxsana’s condition would deteriorate, especially in light of her known HIV-positive status; (c) caused Roxsana’s condition to deteriorate; (d) diminished the opportunity for Roxsana’s condition to improve; (e) caused her to lose her chance to survive and participate in the federal immigration process; and (f) ultimately, caused her death,” reads the motion the Transgender Law Center filed on Wednesday.

“My sister came to the U.S. in search of safety and protection from the horrific violence she experienced as a trans woman in Honduras, and what she found instead was abuse, discrimination and neglect,” said Hernández’s sister, Jenny Hernández Rodríquez, in the Transgender Law Center press release. “The tragic fact that she is no longer with us is a direct result of that discrimination and neglect.”

A spokesperson for the Department of Homeland Security — which oversees ICE and CBP — with whom the Washington Blade spoke on Thursday declined to comment.

The Cibola County Correctional Center in Milan, N.M. (Photo courtesy of U.S. Immigration and Customs Enforcement)

Hernández’s death sparked widespread outrage among immigration advocates. Her case also intensified calls for ICE to release all trans women in their custody.

The Transgender Law Center, the Rapid Defense Network and the Ballard Spahr law firm in April 2020 filed a class action lawsuit that demanded the release of all trans people in ICE custody.

More than 40 Democratic members of the U.S. House of Representatives in January 2020 called for ICE to release all trans people in their custody. Illinois Congressman Mike Quigley on Thursday during a House Appropriations Committee hearing asked Acting ICE Director Tae Johnson about the treatment of trans people in his agency’s custody.

“We have made some efforts on sort of improving our training and identifying specific facilities which would focus on housing these individuals in a less restrictive environment but there’s always more work we can do,” said Johnson. “We’re looking at all aspects of our vulnerable population to include transgender, and this is going to continue to be a priority for us as we move forward in assessing our detention framework.”

A unit for trans women in ICE custody opened at the Cibola County Correctional Center in 2017. It closed in 2020.

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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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