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Mixed views on ‘conscience’ language in defense bill

Some call provision ‘dangerous,’ claim it will lead to discrimination

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Allyson Robinson, gay news, Washington Blade, OutServe, Servicemembers Legal Defense Network
Allyson Robinson, Servicemembers Legal Defense Network, OutServe, gay news, Washington Blade

Allyson Robinson, executive director of OutServe-SLDN (Washington Blade photo by Michael Key)

LGBT rights supporters are expressing disappointment with “conscience” language included in the final version of major Pentagon budget legislation, and although views on its potential impact are mixed, most say the language won’t have a substantive change on current military policy.

A bipartisan group of House and Senate lawmakers made public on Tuesday their agreement for the fiscal year 2013 defense authorization bill, a $633 billion proposal that sets policy for the Pentagon, continues pay for troops and provides funding for military programs.

But these lawmakers also agreed to include a watered-down provision along the lines of an anti-gay measure included in the House bill by outgoing Rep. W. Todd Akin (R-Mo.). That provision was understood to mean service members would be allowed to harass their gay colleagues and that military chaplains could refuse to minister to them simply by saying to do so goes against their religious beliefs.

The language in the conference report, listed under Section 533, is divided into two parts: the first says service members can’t be punished for their beliefs so long as they don’t violate the Uniform Code of Military Justice, the second says chaplains can’t be punished for refusing to perform a ritual contrary to their religious beliefs.

The section isn’t as overtly anti-gay as the House language ā€” there’s no mention of “human sexuality” or sexual orientation ā€” and says service members can still be punished if they act or speak out on their beliefs.

Lawmakers were expected to take up the legislation by the end of this week. House Armed Services Committee Chair Buck McKeon (R-Calif.) said during the conference that he was hopeful for a vote Thursday.

Ian Thompson, legislative representative for the American Civil Liberties Union, was among those offering the strongest objections to the “conscience” language, saying passage could lead to “claims to discriminate, not only against lesbian, gay, and bisexual service members, but also against women, religious minorities, and in the provision of health care.”

“It could reopen longstanding prohibitions against harassment, could lead to claims of a right to proselytize other service members as well as civilians in occupied areas, and could lead to claims of an opt-out from providing health care or participating in anti-harassment training,” Thompson said.

One conservative group is also claiming victory. Tony Perkins, president of the anti-gay Family Research Council, expressed satisfaction over inclusion of the “conscience” language in a statement.

“We are happy to see that Congress has included language in the Department of Defense reauthorization bill that will protect the conscience rights of chaplains and service members,” Perkins said. “This language provides for the protection of the First Amendment rights of all our men and women in the Armed Forces.”

But the “conscience” provision is one small part of the defense authorization bill aimed at continuing funds for the Pentagon and paychecks for U.S. troops. Moreover, the provision was included in exchange for dropping another provision in the House bill that would have prohibited same-sex marriages on military bases.

Progressives have reason to celebrate because the final report includes a provision in the Senate bill offered by Sen. Jeanne Shaheen (D-N.H.) to expand health coverage to cover female service members seeking abortions in cases of rape and incest. Previously, the Pentagon would only provide an abortion in the event the mother’s life was in danger.

Furthermore, other LGBT advocates didn’t express the same sense that “conscience” language would have significant impact.

These advocates are echoing the sentiment of Rep. Adam Smith, top Democrat on the House Armed Services Committee, whoĀ told the Washington Blade during a news conference on TuesdayĀ that while he personally doesn’t support the language, it won’t have a substantive impact on the military because it’s consistent with current policy.

ā€œI think thatā€™s current law,ā€ Smith said. ā€œYou canā€™t punish someone based solely on their beliefs. It has to be actions. Thatā€™s current law. I didnā€™t think that this language needed to be in it. If you ask me, what the one thing I would take out of this bill, if I could, that would be the one thing I would take out of this bill. Now, itā€™s significantly neutered, if you will, to the point where I donā€™t think itā€™s going to be a problem, and Iā€™m going to support the bill, but that is a provision that I did not support.ā€

Among the groups saying the provisions would have no effect are the Human Rights Campaign, OutServe-SLDN and the Center for American Progress.

Michael Cole-Schwartz, a Human Rights Campaign spokesperson, called the provision “unnecessary” in the wake of repeal of “Don’t Ask, Don’t Tell,” but also “meaningless.”

“While it’s bad, it’s also meaningless in a lot of ways,” Cole-Schwartz said. “We were successful in making sure an extension of DOMA wasn’t included and it’s not clear that this language, while unfortunate, will have meaningful consequence for service members.”

Allyson Robinson, executive director of OutServe-SLDN, called the inclusion of the language “disheartening” ā€” especially because it comes on the second anniversary of “Don’t Ask, Don’t Tell” repeal ā€” but says it won’t create any new policy for the Pentagon.

“Indeed, no service member or chaplain is ever punished for his or her religious beliefs unless he or she acts on those beliefs in a way inconsistent with military law or good order and discipline,” Robinson said.

But Robinson also said the appearance of the language in the defense bill should serve as a cautionary tale.

Adam Smith, Washington State, Congress, Democratic Party, gay news, Washington Blade

Rep. Adam Smith (D-Wash.) (Washington Blade photo by Michael Key)

“The fact that provisions such as these could make their way into this bill is an indication that the gains we have made are fragile and that we must remain ever vigilant even as we look toward the work ahead of us needed to achieve full equality in our military,” Robinson said.

Crosby Burns, research associate on LGBT issues for the Center for American Progress, also shared the sentiment that nothing new would happen if the “conscience” provision became law.

“Based on the conference reports language, I believe that it essentially reiterates existing freedoms and protections that service members and chaplains already have,” Burns said. “Obviously, it sets a dangerous precedent because it’s based off language in the House bill that was intentionally crafted to allow people to discriminate against openly gay service members, so obviously that’s cause for concern, but based off the existing language, we believe it doesn’t actually change anything in terms of the substantive policy.”

The White House is staying mum on the conference report provision. A spokesperson didn’t respond to a request for comment after it was made public.

In May, the White House issued a Statement of Administration Policy saying the Obama administration “strongly objects” to the conscience language as it appeared in the House bill along with the provisions barring same-sex marriage from taking place on military bases.

Denying the passage of the provision would have no impact, ACLU’s Thompson drew on the White House objections to the House language while condemning the provision found in the conference report.

“Earlier this year, the White House conveyed its strong objections to the original House-passed language based on how the provision would affect ‘all personnel-related actions based on certain religious and moral beliefs, which, in its overbroad terms, is potentially harmful to good order and discipline,'” Thompson said. “Those serious concerns have ā€” despite initial reports to the contrary ā€” not been resolved by this conference report language. Rather, they are magnified.”

But the White House Statement of Administration Policy doesn’t go as far as a veto threat over the conscience provision if the final version of the bill includes this provision.

Asked whether a veto is necessary, Thompson said the ACLU has already called on Obama to veto the defense authorization bill over an unrelated provision related to detainees at Guantanamo Bay, but hasn’t yet determined whether to include the “conscience” provision as another reason to veto the bill.

“The ACLU, as part of a broad coalition of human rights organizations, is already recommending a veto of the legislation based on its Guantanamo detainee transfer prohibitions,” Thompson said. “We are exploring whether to add this provision as another reason we would recommend a White House veto.”

The complete language of Section 533 of the bill follows:

SEC. 533. PROTECTION OF RIGHTS OF CONSCIENCE OF MEMBERS OF THE ARMED FORCES AND CHAPLAINS OF SUCH MEMBERS.
(a) PROTECTION OF RIGHTS OF CONSCIENCE. ā€”
(1) ACCOMMODATION. ā€” The Armed ForcesĀ shall accommodate the beliefs of a member of theĀ armed forces reflecting the conscience, moral principles, or religious beliefs of the member and, in soĀ far as practicable, may not use such beliefs as theĀ basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, orĀ assignment.
(2) DISCIPLINARY OR ADMINISTRATIVE ACTION. ā€” Nothing in paragraph (1) precludes disciplinary or administrative action for conduct that isĀ proscribed by chapter 47 of title 10, United StatesĀ Code (the Uniform Code of Military Justice), including actions and speech that threaten good order andĀ discipline.
(b) PROTECTION OF CHAPLAIN DECISIONS RELATING TO CONSCIENCE, MORAL PRINCIPLES, OR RELIGIOUSĀ BELIEFS. ā€” No member of the Armed Forces mayā€” (1) require a chaplain to perform any rite, ritual, or ceremony that is contrary to the conscience,Ā moral principles, or religious beliefs of the chaplain;Ā or (2) discriminate or take any adverse personnelĀ action against a chaplain, including denial of promotion, schooling, training, or assignment, on theĀ basis of the refusal by the chaplain to comply withĀ a requirement prohibited by paragraph (1).
(c) REGULATIONS.ā€”The Secretary of Defense shallĀ issue regulations implementing the protections afforded byĀ this section.

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Federal Government

Trump ‘culture war’ complicates HUD’s distribution of $3.6B in housing grants

Senate Dems call for new agreements

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U.S. Sen. Adam Schiff (D-Calif.) (Washington Blade photo by Michael Key)

The disbursement of more than $3.6 billion in federal grants to housing providers has been paused for weeks while the U.S. Department of Housing and Urban Development seeks to condition receipt of the funding on compliance with President Donald Trump’s executive actions targeting DEI and transgender and immigrant communities.

March 4 was the statutory deadline for the agency to distribute the funds, which come through the Continuum of Care Program in support of local governments and nonprofit organizations working to promote “a community-wide commitment to the goal of ending homelessness.”

On March 13, a group of Senate Democrats led by U.S. Sens. Adam Schiff (Calif.) and Tina Smith (Minn.) wrote to HUD Secretary Scott Turner urging him to move quickly on distributing the grants and warning of the consequences that recipients are now facing and the harm they will encounter in the future if delays persist.

“To keep the lights on, providers are now being forced to draw on lines of credit at significant cost and risk to their organizations,” the senators said. “These projects enable homeless service providers to help veterans, families with children, youth, seniors, and vulnerable individuals access permanent and temporary housing, crisis counseling, and other supportive services.ā€

HUD subsequently disseminated grant agreements ā€” and Schiff published an example on his office’s website ā€” that included, among other provisions, language stipulating that the awardee (1) “shall not use grant funds to promote ‘gender ideology,’ as defined in E.O. 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” (2) certifies that it does not operate any programs promoting diversity, equity, and inclusion that violate any applicable Federal anti-discrimination laws, and (3) agrees not to use “that funding in a manner that by design or effect facilitates the subsidization or promotion of illegal immigration or abets so-called ‘sanctuary’ policies that seek to shield illegal aliens from deportation.”

On March 14, the 4th U.S. Court of Appeals stayed a nationwide injunction enjoining three parts of Trump’s executive order on DEI, and the following day, HUD rescinded the CoC contracts and said to expect new agreements within a week as the agency was “working to revise its CoC grant agreements to be consistent with Federal law and compliant with applicable court orders.”

Schiff then led a second letter to Turner on March 19 with the Senate Democratic Leader Chuck Schumer (N.Y.) and U.S. Sens. Alex Padilla (D-Calif.), Martin Heinrich (D-N.M.), Ron Wyden (D-Ore.), Mazie Hirono (D- Hawaii), and Richard Blumenthal (Conn.).

“We urge the department to immediately issue new CoC grant agreements consistent with longstanding practiceā€” free of the aforementioned conditionsā€” to ensure all individuals experiencing homelessness receive protection and support, regardless of gender identity, location, or other characteristics,” they said, requesting a response by March 31.

“The initial FY2024 grant agreements issued to CoC funding recipients contained new requirements that are deeply problematic, and likely unlawful, requirements,” the senators argued. “These mandates, such as barring shelters from serving transgender people, prohibiting DEI initiatives, and certifying that they do not support ‘sanctuary’ policies protecting noncitizens, conflict with federal civil rights, fair housing, and immigration laws, raising serious legal and constitutional concerns.”

The lawmakers noted “the harm caused by these delayed and unfulfilled CoC grant agreements will fall disproportionately on our most vulnerable populations, including women, families with children, youth, veterans, survivors of domestic and intimate partner violence, people with disabilities, and LGBTQ+ individuals.” They added, “Women experiencing homelessness ā€” many of whom are fleeing domestic abuse ā€” already face significant barriers to safety and stability, and restricting access to critical housing services will only further endanger their lives and well-being.”

Citing research that nearly one in three transgender Americans has experiences homelessness in their lives, Schiff and his colleagues stressed that “Transgender and nonbinary people in the U.S. face significant barriers to securing safe housing, with many experiencing homelessness and high rates of mistreatment and violence in shelters.”

With respect to the language in the agreements about “sanctuary” policies, the senators wrote “The organizations receiving CoC funds exist to provide critical, non-discriminatory aid to those in need, regardless of their immigration status. These organizations do not set or enforce immigration policy ā€” they simply fulfill their legal duty to provide life-saving and life-changing care.”

Later on March 19, HUD began issuing new contracts that did not contain the provision concerning DEI but did include the same language about “gender ideology” and “sanctuary” policies.

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U.S. Federal Courts

Court halts removal of two transgender service members

Case challenging anti-trans military ban proceeds in D.C.

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Laila and Logan Ireland (Photo courtesy of the couple)

A federal court in New Jersey issued a temporary restraining order on Monday that will halt the separation of two transgender service members from the U.S. military while their case in D.C. challenging the Trump-Vance administration’s ban moves forward.

The order by Judge Christine O’Hearn pauses proceedings against Staff Sgt. Nicholas Bear Bade and Master Sgt. Logan Ireland, who “have been pulled from key deployments and placed on administrative absence against their will because of the ban,” according to a joint press release Monday by the National Center for Lesbian Rights and GLAD Law, which are representing the service members together with other litigants in Ireland v. Hegseth and in the case underway in the U.S. District Court for the District of Columbia, Talbott v. Trump.

“That court granted a preliminary injunction March 18 barring the Department of Defense from implementing the ban, finding that it discriminates based on sex and transgender status; that it is ‘soaked in animus;’ and that, due to the governmentā€™s failure to present any evidence supporting the ban, it is ‘highly unlikely’ to survive any level of judicial review,” the groups noted in their press release.

Ireland spoke with the Washington Blade in January along with other trans service members and former service members who shared their experiences with the military and their feelings on the new administration’s efforts to bar trans people from the U.S. armed forces.

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State Department

Report: State Department to remove LGBTQ information from annual human rights report

Spokesperson declines to ‘preview’ information ‘at this time’

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(Photo courtesy of the Library of Congress)

The State Department has not commented a report that indicates it plans to remove LGBTQ-specific information from their annual human rights report.

Politico on March 19 reported the Trump-Vance administration “is slashing the State Department’s annual human rights report ā€” cutting sections about the rights of women, the disabled, the LGBTQ+ community, and more.” The Politico article notes it obtained “documents” and spoke with “a current and a former State Department official who were familiar with the plan.”

“We are not previewing the human rights report at this time,” a State Department spokesperson told the Washington Blade on March 21.

Congress requires the State Department to release a human rights report each year. 

The 2023 report specifically noted Uganda’s Anti-Homosexuality Act that contains a death penalty provision for “aggravated homosexuality.” The 2022 report highlighted, among other things, anti-LGBTQ crackdowns in Afghanistan, Russia, and Hungary and so-called conversion therapy.

President Donald Trump since he took office has signed a number of executive orders that have specifically targeted the LGBTQ and intersex community. These include the ā€œDefending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Governmentā€ directive that, among other things,Ā bans the State Department from issuing passports with ā€œXā€ gender markers.

The State Department has eliminated references to transgender travelers from its travel advisories. Germany, Denmark, and Finland have issued travel advisories for trans and nonbinary people who are planning to visit the U.S.

A directive that Secretary of State Marco Rubio issued bans embassies and other U.S. diplomatic institutions from flying the Pride flag. (Former President Joe Biden in March 2024 signed a government spending bill with a provision that banned Pride flags from flying over U.S. embassies.)

The U.S. has withdrawn from the U.N. LGBTI Core Group, a group of U.N. member states that have pledged to support LGBTQ and intersex rights, and the Organization of American States’ LGBTI Core Group. The Trump-Vance administration’s decision to suspend most U.S. foreign aid spending has been a “catastrophe” for the global LGBTQ and intersex rights movement.

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