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ALERT: Defense budget may include anti-gay provision

House GOP pushing clause that some fear could lead to harassment of gay service members

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House Republicans are aggressively pushing for an anti-gay provision in a defense bill proposed by Rep. W. Todd Akin. (Blade file photo by Michael Key)

Some House Republicans are pushing for inclusion of a “conscience protection” clause in the final version of Pentagon budget legislation that could enable discrimination against gay service members, according to LGBT advocates familiar with conference committee negotiations.

The measure could be made final as soon as today.

Two LGBT advocates, who spoke on condition of anonymity, said House Republican conferees working on the final version of the fiscal year 2013 defense authorization bill are pushing for language along the lines of the “conscience protections” in the House version of the legislation under Section 536. One source said this language is “very much in play” for being in the final version of the bill and is one of the final issues yet to be resolved as conferees wrap up the legislation.

Under the language, the U.S. military would have to “accommodate the conscience and sincerely held moral principles and religious beliefs of the members of the Armed Forces concerning the appropriate and inappropriate expression of human sexuality” and may not use these beliefs as the basis of any adverse personnel action or discrimination. Additionally, it would prohibit the U.S. military from taking action against military chaplains who decline to serve a particular service member based on religious beliefs.

This language has been understood to mean service members could actively harass their fellow comrades for their perceived or actual sexual orientation without fear of reprisal. Additionally, it has been understood to mean that chaplains would have free rein to discriminate against service members on any basis — including religion, gender, sexual orientation, race or any other characteristic — simply by saying serving them is contrary to their beliefs.

The provision was added during the House Armed Services Committee markup of the legislation in May by outgoing Rep. W. Todd Akin (R-Mo.), an anti-gay lawmaker who became notorious during his bid as a U.S. Senate candidate for suggesting a woman can resist becoming pregnant after a “legitimate rape.” One of the LGBT advocates said the final language may not be exactly like Akin’s language in the House bill, but something along similar lines.

Drew Hammill, a spokesperson for House Minority Leader Nancy Pelosi (D-Calif.), affirmed that House Republican conferees are actively trying to include some type of exemption modeled after the “conscience protections” in the House bill.

“Leader Pelosi strongly opposes the inclusion of a ‘conscience provision’ in the final NDAA conference report,” Hammill said. “This language is a completely unnecessary attempt to address a phantom problem. ‘Don’t Ask, Don’t Tell’ is in the dustbin of history where it belongs and Republicans need to stop trying to alter the tide of progress for gay and lesbian servicemembers.”

According to one source, House Republicans are pushing for the provision in exchange for giving up on the other anti-gay provision in the House defense authorization bill, Section 537, which would prohibit the use of Defense Department property for same-sex marriage ceremonies.

The Republican-controlled House approved a defense authorization bill with both these provisions as part of its $642 billion package in May, but the Senate left out this language in its $631 billion legislation passed last week.

The sense that this language is in play for the final version of the bill isn’t universal. A Senate Democratic aide familiar with the talks, who spoke on condition of anonymity, said he’s heard no discussion about the language and would be “very surprised” if it wound up in the final bill.

“I have not heard of it being in play and when that issue has come up — it came up last year and came up in mark up this year — it has always been outright rejected,” the aide said. “I know that there are House Republicans that want this, but I would be very surprised if it were enough of a group of House Republicans to be able to really play ball on this.”

Conferees may produce a final version of the legislation as soon as today, but likely not until next week. A floor vote is expected on the final version of the bill shortly thereafter. The aide said an informal meeting of conferees took place on Wednesday.

Asked if Democrats are putting up a fight, one source said he thinks Democrats would be happy if the anti-gay provisions were left out, but they may be talking about a compromise that would allow something along the lines of “conscience provisions” to appear in the bill. But the Democratic aide said Senate Armed Services Committee Chair Carl Levin has strong objections to the provisions and would have raised them.

The debate over the language has been somewhat under the radar because controversial provisions included in one chamber’s version of legislation, but not the other, are usually dropped when conferees meet to hammer a final bill. Spokespersons for the House and Senate armed services committees say they wouldn’t have a comment until a final conference report is produced.

One source said it’s unclear which of the House Republican conferees are actively pushing for the language and he doesn’t believe House Armed Services Committee Chair Buck McKeon (R-Calif.) was taking the lead in the effort. But notable anti-gay lawmakers are members of the conference, including Reps. Vicky Hartzler (R-Mo.) and House Armed Services personnel subcommittee chair Joe Wilson (R-S.C.).

It also should be noted that despite concerns about the language, questions linger about whether it will be enforceable even if it becomes the law on the grounds of unit cohesion and morale. The Senate Democratic aide said military chaplains are already free to decline ministration to any service member on the basis of religious beliefs even if the provision weren’t in law. Additionally, the first part of the provision says nothing in the language precludes disciplinary action for conduct proscribed by the Uniform Code of Military Justice — although sexual orientation isn’t a protected class in military law.

The White House said in May the Obama administration “strongly objects” to the conscience provision in the House version of the defense authorization bill along with a provision prohibiting same-sex couples from marrying on military bases as part of its Statement of Administration Policy.

Still, the statement doesn’t go as far as issuing a veto threat if the final version of the bill includes these provisions. A White House spokesperson didn’t respond immediately on short notice to a request for comment.

NOTE: This article has been updated to include a comment from Drew Hammill.

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U.S. Supreme Court

LGBTQ groups commemorate 50th anniversary of Roe v. Wade

Equality Florida staffers attended vice president’s speech in Fla.

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The U.S. Supreme Court on June 24, 2022, overturned the landmark Roe v. Wade decision that had been issued on Jan. 22, 1973. LGBTQ advocacy groups this week commemorated the 50th anniversary of the landmark decision. (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Jan. 22, 1973, issued its Roe v. Wade ruling that ensured the constitutional right to an abortion for all American citizens. The Supreme Court last June overruled this landmark decision.

Fifty years later, LGBTQ activists are among those who have commemorated Roe, despite the fact the Supreme Court has overturned it. The decision, which has since caused tension between liberal and conservative groups, prompted federal and state lawmakers to act upon the sudden revocation of what many consider to be a fundamental right. 

Roe’s legal premise relied heavily upon the right to privacy that the 14th Amendment provided; however, legal experts argued that it was a vague interpretation of the amendment.

Vice President Kamala Harris on Sunday delivered remarks on Roe’s anniversary in Tallahassee, Fla., saying how most “Americans relied on the rights that Roe protected.” 

“The consequences of the Supreme Court’s ruling are not only limited to those who need reproductive care,” said Harris. “Other basic healthcare is at risk.”

The overruling of Roe put into question the security of other long-held precedents, such as Obergefell v. Hodges, the 2015 case that legalized same-sex marriages, and Loving v. Virginia, the 1967 decision that legalized interracial marriages, because they rely on the same right to privacy that upheld Roe.

In that same speech, Harris announced President Joe Biden would issue a presidential memorandum to direct all government departments to ensure access to abortion pills at pharmacies.

“Members of our Cabinet and our administration are now directed, as of the president’s order, to identify barriers to access to prescription medication and to recommend actions to make sure that doctors can legally prescribe, that pharmacies can dispense, and that women can secure safe and effective medication,” Harris affirmed. 

LGBTQ organizations and other human rights groups continue to work to protect reproductive rights.

Human Rights Campaign President Kelley Robinson said she found it intolerable that “an extremist set of judges” had taken away an important right not only for women, but also nonbinary people, trans men, and the entire LGBTQ+ community.

“Because we know that reproductive rights are LGBTQ+ rights, and that so many in our community rely on access to abortion care and other reproductive health services,” said Robinson in regards to Roe’s 50th anniversary. “The ripple effects of this decision will impact the most marginalized among us the most, and we cannot stand for that.”

“Overturning Roe v. Wade was the first time in history that the Supreme Court has taken away rights, and we know that they will not stop there,” added Robinson. “This is a dangerous turning point for our country, and we have to affirmatively defend against this assault.” 

Robinson said HRC is working with coalition partners to fight the roll-back of abortion rights at the state and federal level. 

Christian Fuscarino, executive director of Garden State Equality, a statewide LGBTQ rights group in New Jersey, said his organization is “laser-focused on ensuring that people with trans and nonbinary experiences are experiencing lived equality, which includes bodily autonomy.” 

Equality Florida showed its support of Roe by standing alongside Harris during her Tallahassee speech with several other lawmakers and activists. They also denounced Republican Gov. Ron DeSantis’ antiabortion policies, as well as the Florida legislature. 

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Virginia

Va. Senate approves marriage equality affirmation bill

State Sen. Adam Ebbin sponsored SB 1096

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(Washington Blade photo by Michael Key)

The Virginia Senate on Tuesday approved a bill that would affirm marriage equality in state law.

State Sen. Adam Ebbin (D-Alexandria)’s Senate Bill 1096 passed by a 25-12 vote margin. 

“My bill ensuring that Virginians have the right to marry who they love regardless of their sex, has passed the Senate on a bipartisan vote,” tweeted the openly gay Alexandria Democrat.

The American Civil Liberties Union of Virginia also noted SB 1096 passed with bipartisan support.

“Virginia is for all lovers,” tweeted the ACLU of Virginia. “Our law should reflect our values.”

Ebbin has also reintroduced a resolution to begin the process of repealing a Virginia constitutional amendment that defines marriage as between a man and a woman. The resolution is currently before a Senate subcommittee.

SB 1096 now goes to the Republican-controlled Virginia House of Delegates.

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Washington

Federal court upholds Wash. conversion therapy ban

State lawmakers in 2018 prohibited debunked practice for minors

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The William Kenzo Nakamura U.S. Courthouse for the 9th Circuit in Seattle. (Photo by Joe Mabel)

The U.S. Court of Appeals for the 9th Circuit on Monday rejected a therapist’s request for the court to reconsider its previous decision upholding Washington State’s law protecting minors from so-called conversion therapy by licensed health professionals.

Conversion therapy is a dangerous and discredited practice that attempts to change a minor’s sexual orientation or gender identity.

Washington prohibited licensed mental health professionals from subjecting minors to conversion therapy in 2018, as more than 20 other states have also done.

Last September, the 9th Circuit wrote: “In relying on the body of evidence before it as well as the medical recommendations of expert organizations, the Washington Legislature rationally acted by amending its regulatory scheme for licensed health care providers to add ‘performing conversion therapy on a patient under age eighteen’ to the list of unprofessional conduct for the health professions.”

“The 9th Circuit has affirmed that states can require licensed mental health providers to comply with ethical and professional standards prohibiting the use of unnecessary, ineffective, and harmful treatments on their minor patients,” said National Center for Lesbian Rights Legal Director Shannon Minter. “These are common sense protections that unfortunately are necessary to prevent unethical therapists from defrauding parents and causing severe harm to LGBTQ youth. Every major medical and mental health organization in the country supports these laws, which are supported by decades of research and clear standards of care.”

“We applaud the 9th Circuit for permitting states to protect survivors like myself from the unethical practice of so-called ‘conversion therapy,’ which has wreaked havoc on thousands of LGBTQ youth and their families,” said Mathew Shurka, a conversion therapy survivor and co-founder of Born Perfect. 

In 2018, Washington passed a law prohibiting state-licensed therapists from engaging in conversion therapy with a patient under 18-years-old. Every leading medical and mental health organization in the country has warned that these practices do not work and put young people at risk of serious harm, including depression, substance abuse and suicide. Twenty-five states and more than 100 localities have laws or administrative policies protecting youth from these practices or preventing the expenditure of state funds on conversion therapy.

In 2021, an anti-LGBTQ legal group filed a federal lawsuit challenging the new law on behalf of Brian Tingley, a therapist and advocate of conversion therapy.

Tingley, who is represented by the Scottsdale, Ariz.,-based anti-LGBTQ Alliance Defending Freedom, identifies himself as a “Christian licensed marriage and family therapist” and alleges in the court filings that the provided definition of “conversion therapy” is “vague, content-biased and biased against one perspective or point of view.”

NCLR successfully moved to intervene in the lawsuit on behalf of Equal Rights Washington, the state’s largest LGBTQ civil rights organization and a primary supporter of the law during the legislative process. ERW and Washington State urged the court to uphold the law in light of the overwhelming consensus of medical and mental health professionals that conversion therapy poses a serious risk to the health and well-being of Washington’s youth. In August 2021, the federal district court for the Western District of Washington upheld the law and rejected Tingley’s challenge.

In September 2022, a three-judge panel of the 9th Circuit affirmed the district court’s decision, ruling that state laws protecting minors from conversion therapy by licensed health professionals are constitutional. Tingley then asked the full 9th Circuit to order the September decision to be reconsidered by a larger panel of 9th Circuit judges. Today, the court rejected that request. 

The court’s order means that the September 2022 panel decision upholding the Washington law will be the 9th Circuit’s final decision in the case.

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