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Defense bill contains gay-related provisions

Expanded conscience protections; sodomy ban repealed in military code

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United States Capitol Building, dome, gay news, Washington Blade
United States Capitol Building, dome, gay news, Washington Blade

The defense authorization passed by Congress includes gay-related provisions. (Washington Blade file photo by Michael Key)

The U.S. Congress passed major defense budget legislation on Thursday that includes provisions related to the LGBT community — both good and bad — in the aftermath of “Don’t Ask, Don’t Tell.”

The fiscal year 2014 defense authorization bill contains an expansion of the conscience protections for service members under current law, but also repeals the sodomy ban under military law and calls for a report on HIV policy within the U.S. military.

The Senate approved late Thursday by a vote of 84-15 a $630 billion version of the bill, which primarily reauthorizes pay for troops and funding for military programs. The House already approved the legislation, so it’s heading to President Obama’s desk.

Sen. Carl Levin (D-Mich.), the retiring chair of the Senate Armed Services Committee, issued a statement upon passage of the legislation praising the bipartisan nature of its approval.

“Tonight we passed legislation that is good for our national security, and for the men and women who protect us and their families,” Levin said. “The Senate vote is a strong bipartisan statement that, despite our differences, we can come together and accomplish important business for the good of the country.”

Under Section 532, the legislation contains an expansion of the conscience provision that was enacted as part of last year’s defense authorization bill. Under this provision, the armed services shall accommodate service members’ expression of their beliefs — unless it would have an adverse impact on military readiness or good order and discipline.

The language was inserted by Sen. Mike Lee (R-Utah) during the Senate Armed Services Committee markup of the fiscal year 2014 defense authorization. It’s along the lines of a conscience amendment submitted by Rep. Mike Fleming (R-La.) during the House Armed Services Committee markup of its version of the bill, but not quite as strong. LGBT advocates decried the House version of the amendment as a means to enable service members to discriminate and harass their gay colleagues.

A related provision, Section 533, instructs the Inspector General of the Department of Defense to submit a report to Congress no longer than 18 months after the bill is signed into law on incidents of adverse personnel actions or discrimination against troops based on their moral beliefs.

Tony Perkins, president of the anti-gay Family Research Council, praised Congress in a statement over inclusion of the provision, which he said is a means for “protecting the right of service members to freely practice and express their faith.”

“Congress acted appropriately after investigating numerous incidents involving service members who have had their careers threatened, and harassed simply for practicing their faith in a real and tangible way,” Perkins said. “The religious liberty violations have grown so frequent in recent years leading many service members to report being too fearful to share their faith.”

After the enactment of the earlier conscience provision under the previous defense authorization bill, Obama said the Pentagon assured him the language wouldn’t change how the armed forces operated. The Defense Department didn’t respond to the Washington Blade’s request for comment on how implementation will work this time around.

Ian Thompson, legislative representative of the American Civil Liberties Union, said the inclusion of the conscience provision in the defense authorization bill was unnecessary.

“The ACLU believes that the Constitution and existing laws and regulations already offer all members of the Armed Forces, including chaplains, strong protections for their religious beliefs,” Thompson said.

Fred Sainz, the Human Rights Campaign’s vice president of communications, expressed a similar sentiment that the provision is unnecessary because service members’ religious views are already protected under current policy.

“Although this amendment is unnecessary, Congress dropped a different version adopted by the House of Representatives that would have been truly harmful, requiring the military to accommodate beliefs, actions, and speech of service members unless the armed forces could prove ‘actual harm’ to good order and discipline,” Sainz said.

But the legislation as a whole also contains positive language sought by LGBT advocates in the aftermath of “Don’t Ask, Don’t Tell” repeal. Among these provisions is Section 1707 — repeal of the ban on sodomy for gay and straight service members under Article 125 of the Uniform Code of Military Justice. The provision was added by Sen. Mark Udall (D-Colo.).

In its place, the legislation inserts into military code a provision making “unnatural carnal copulation” with another person “by force” subject to a court martial. The provision also reasserts the ban on bestiality in military code.

Although the sodomy ban was rarely enforced for service members engaging in consensual sex in private, it has remained on the books and been used to prosecute troops in combination with additional infractions.

ACLU’s Thompson said the repeal of the sodomy ban is an important step forward to guarantee the liberty of service members — gay and straight — in the aftermath of “Don’t Ask, Don’t Tell” repeal.

“This is a welcome and overdue step forward that respects the liberty and privacy of all service members, and is especially significant for gay and lesbian service members whose intimate relationships, including marriages, were labeled a violation of military criminal law,” Thompson said. “Removing this stigmatizing and discriminatory provision from the Uniform Code of Military Justice advances the promise of equal treatment for all military personnel.”

Additionally, under Section 572, the legislation directs the Pentagon to submit a report to Congress no later than 180 days after the bill is signed into law on personnel policies regarding service members with HIV or Hepatitis B.  The bill directs the Pentagon to include a description of the policies as well as related retention, deployment and disciplinary actions as well as an assessment of whether these policies are evidence-based and medically accurate.

According to the LGBT military group SPART*A, service members become non-deployable once they’re discovered to have HIV; can’t commission as an officer or warrant officer; can’t fly aircraft or work in any jobs requiring a flight physical; are restricted to stateside duty assignments (with the exception of the Navy); and are not eligible for special schools such as Ranger, Special Forces or other special ops jobs.

Thompson said the provision is welcome because it will examine whether the military’s current HIV policy is appropriate or outdated.

“This review is welcome and overdue becausemany of our laws, policies, and regulations regarding HIV were written at a time when we knew far less about the routes and risks of HIV transmission, and prior to the development of effective HIV treatment,” Thompson said.

Another important non-LGBT provision in the defense authorization bill replaces foreign transfer restrictions in  current law to enable President Obama to close the detention facility in Guantanamo Bay. The bill also seeks to aid victims of sexual assault in the military by criminalizing retaliation against victims who report it,  preventing military commanders from overturning jury convictions and protecting victims of sexual assault from abusive treatment during pre-trial proceedings.

The LGBT group Freedom to Work had said insertion of the Employment Non-Discrimination Act into the defense authorization bill could be a viable way to pass the measure. However, prior to ENDA’s passage in the Senate, Senate Majority Leader Harry Reid (D-Nev.) told the Washington Blade such inclusion wasn’t a viable option because he didn’t know if the larger defense bill would pass.

On Thursday, White House Press Secretary Jay Carney issued a statement saying the administration has concerns with certain aspects of the legislation, but supports it overall.

“Although the bill includes a number of provisions that restrict or limit the Defense Department’s ability to align military capabilities and force structure with the President’s strategy and implement certain efficiencies, overall the Administration is pleased with the modifications and improvements contained in the bill that address most of the Administration’s significant objections with earlier versions regarding these issues,” Carney said. “The Administration supports passage of the legislation.”

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1 Comment

1 Comment

  1. John Klenert

    December 20, 2013 at 6:05 pm

    Removal of sodomy from the Uniform Code of Military Justice is indeed a major step. There are still about 15 States which still have sodomy laws on their books despite SCOTUS rulings. (A few of these States even have marriage equality.) These laws need to be repealed.

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World

Trudeau’s party wins Canada election

Prime minister champions LGBTQ rights

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Canadian Prime Minister Justin Trudeau speaks to reporters at the U.N. in 2016. (Washington Blade photo by Michael K. Lavers)

Canadian Prime Minister Justin Trudeau’s Liberal Party won the country’s election that took place on Monday.

The Canadian Broadcasting Corporation projected Trudeau’s party won, even though polls have not closed in all provinces and territories. Erin O’Toole of the Conservative Party was Trudeau’s main challenger.

Trudeau has been prime minister since 2015.

He won re-election in 2019, even though a picture of him in blackface emerged a few weeks before the vote. His party lost its majority in Parliament.

Trudeau last month called a snap election in the hopes his party could once again have a majority government.

The prime minister in 2017 formally apologized to those who suffered persecution and discrimination under Canada’s anti-LGBTQ laws and policies and announced the Canadian government would settle a class-action lawsuit filed by those who were forced to leave the military and civil service because of their sexual orientation.

A law that added gender identity to Canada’s nondiscrimination and hate crimes also law took effect in 2017. Trudeau supports a bill that would ban so-called conversion therapy in the country.

Canada in 2018 joined the Global Equality Fund, a public-private partnership the U.S. launched in order to promote LGBTQ rights around the world. Canada has also said it would offer refuge to LGBTQ Afghans who are fleeing their country after the Taliban regained control of it in August.

The Washington Blade will update this article.

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McAuliffe participates in Virginia Pride roundtable

Gubernatorial candidate highlighted plans to keep Va. ‘open and welcoming’

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(Washington Blade photo by Lee Whitman)

Terry McAuliffe on Monday met with Virginia Pride in Richmond to discuss his plans to keep the state “open and welcoming” for the LGBTQ community.

“Great opportunity to speak with @VA_Pride in Richmond this AM,” McAuliffe tweeted following the roundtable that took place at Diversity Richmond’s headquarters. “VA is the #1 state for business because we are open and welcoming — but that’s all at risk this November. Glenn Youngkin’s far-right social agenda would harm LGBTQ+ Virginians and send our economy into a ditch.”

McAuliffe and Youngkin are running a close race for the governorship, according to a Washington Post-Schar School poll released Saturday that shows the former Virginia governor leading by a 50-47 percent margin among likely voters.

The Human Rights Campaign endorsed McAuliffe, who was governor from 2014-2018, for his record of supporting LGBTQ rights, including supporting marriage equality and signing an executive order prohibiting discrimination against LGBTQ state employees as his first action in office. 

“LGBTQ leaders in Richmond had a great meeting with Gov. McAuliffe where he was able to lay out his agenda for building on the tremendous progress Virginia has made towards equality,” said Virginia Pride Program Director James Millner in an email to the Washington Blade. “The governor talked extensively about his record on LGBTQ issues and promised to work with us to ensure that every LGBTQ Virginian is able to live openly and authentically.”

McAuliffe’s legacy includes welcoming businesses turned off by North Carolina’s passage of its anti-transgender “bathroom bill.” 

When North Carolina’s House Bill 2, a law requiring students to use public restrooms and locker rooms aligned with the gender on their birth certificates, took effect in 2016, McAullife recruited CoStar, a real estate information company that operates databases for Apartments.com, ApartmentFinder.com and similar companies, to move its headquarters to Richmond. This recruitment brought 730 jobs to the state.

David Dorsch, a senior vice president at Cushman and Wakefield, which represented CoStar nationally, told the Charlotte Business Journal that CoStar’s primary reason for choosing “Richmond over Charlotte was HB 2.”

Youngkin is a former business executive who previously ran the Carlyle Group, a private equity firm named by the HRC in 2019 as a “Best Place to Work for LGBTQ Equality” in its annual Corporate Equality Index. HRC, however, has called out Youngkin for “anti-LGBTQ and transphobic language” during his current campaign.

McAuliffe in April released an LGBTQ rights platform that includes a call to repeal the so-called “conscience clause,” which allows religious-based adoption agencies to discriminate against same-sex couples.

Governor Ralph Northam, who was McAuliffe’s former lieutenant governor and has signed historic LGBTQ-inclusive legislation during his time in office, also endorsed McAuliffe for governor.

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Biden recognizes 10th anniversary of end to ‘Don’t Ask, Don’t Tell’

Pete Buttigieg, Gina Ortiz Jones named in White House statement

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President Biden recognized in a statement on Monday the tenth anniversary of the end to “Don’t Ask, Don’t Tell,” a law that once discharged service members from the military for being openly gay or bisexual.

“Ten years ago today, a great injustice was remedied and a tremendous weight was finally lifted off the shoulders of tens of thousands of dedicated American service members,” Biden said. “The repeal of ‘Don’t Ask, Don’t Tell,’ which formally barred gay, lesbian, and bisexual service members from openly serving, helped move our nation closer to its foundational promise of equality, dignity, and opportunity for all.”

Biden recognized high-profile openly gay appointees in his administrations who are also veterans, naming Air Force Under Secretary Gina Ortiz Jones and Transportation Secretary Pete Buttigieg. Biden also names Shawn Skelly, assistant secretary of defense for readiness, who would have been discharged from the military under President Trump’s transgender military ban.

“On this day and every day, I am thankful for all of the LGBTQ+ service members and veterans who strengthen our military and our nation,” Biden said. “We must honor their sacrifice by continuing the fight for full equality for LGBTQ+ people, including by finally passing the Equality Act and living up to our highest values of justice and equality for all.”

Technically speaking, the anniversary of Obama signing repeal legislation was in December. Today is the anniversary of defense officials certifying the military is ready, which put an end to the policy.

Read Biden’s full statement below:

Statement by President Joe Biden on the Tenth Anniversary of the Repeal of Don’t Ask, Don’t Tell
Ten years ago today, a great injustice was remedied and a tremendous weight was finally lifted off the shoulders of tens of thousands of dedicated American service members. The repeal of Don’t Ask, Don’t Tell, which formally barred gay, lesbian, and bisexual service members from openly serving, helped move our nation closer to its foundational promise of equality, dignity, and opportunity for all. It was the right thing to do. And, it showed once again that America is at its best when we lead not by the example of our power, but by the power of our example.

Despite serving with extraordinary honor and courage throughout our history, more than 100,000 American service members have been discharged because of their sexual orientation or gender identity—including some 14,000 under Don’t Ask, Don’t Tell. Many of these veterans received what are known as “other than honorable” discharges, excluding them and their families from the vitally important services and benefits they had sacrificed so much to earn.

As a U.S. Senator, I supported allowing service members to serve openly, and as Vice President, I was proud to champion the repeal of this policy and to stand beside President Obama as he signed the Don’t Ask, Don’t Tell Repeal Act into law. As President, I am honored to be Commander-in-Chief of the strongest and most inclusive military in our nation’s history. Today, our military doesn’t just welcome LGBTQ+ service members—it is led at the highest levels by brave LGBTQ+ veterans, including Under Secretary of the Air Force Gina Ortiz Jones and Assistant Secretary of Defense for Readiness Shawn Skelly, who served under Don’t Ask, Don’t Tell. I was gratified to appoint the first openly gay Senate-confirmed Cabinet member, Secretary Pete Buttigieg, a lieutenant in the U.S. Navy Reserve and Afghanistan veteran who joined the military under the Don’t Ask, Don’t Tell policy. And during my first week in office, I proudly delivered on my pledge to repeal the discriminatory ban on open service by patriotic transgender service members.

On this day and every day, I am thankful for all of the LGBTQ+ service members and veterans who strengthen our military and our nation. We must honor their sacrifice by continuing the fight for full equality for LGBTQ+ people, including by finally passing the Equality Act and living up to our highest values of justice and equality for all.

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