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White House gives Pentagon six months to create new trans military ban policy

UPDATE: OutServe-SLDN and Lambda Legal intend to file lawsuits

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transgender troops, gay news, Washington Blade, transgender military service ban

A U.S. Army sergeant flies the American flag from the back of a CH-47 Chinook helicopter over southern Kandahar province, Afghanistan. The pilots and crew chiefs fly American flags to present with certificates to service members as part of aviation tradition. (U.S. Army photo by Staff Sgt. Bryan Lewis)

White House guidance on the transgender military service ban President Trump ordered via tweet July 26 is headed to the Pentagon, as soon as Thursday afternoon or possibly Friday morning, a senior White House source told the Los Angeles Blade.

The Guidance has been boiled down to a 2½-page memo that directs Defense Sec. Mattis to come up with a policy in six months, stop spending money on transgender-related medical treatment for active duty trans servicemembers and gauges fitness for service based on “deployability”—whether the trans individual can ably serve in a war zone and engage in military exercises or function a ship for months, officials told the Wall Street Journal. 

“‎DoD will provide an update upon receipt of formal guidance,” Pentagon spokesperson Lt. Col. Paul Haverstick told The Washington Blade’s Chris Johnson. “The Department continues to focus on our mission of defending our nation and on-going operations against our foes, while ensuring all service members are treated with respect.”

That guidance was also watered down from the complete ban Trump ordered to one that would allow active duty trans service members to continue serving after even Republicans opposed the policy change. The weakened policy requires that recruitment and the accessions policy be halted (they are now), enlistment contracts not be renewed, promotions result in discharges, and transgender-specific healthcare be prohibited.

At an Aug. 14 news conference, Mattis indicated support for trans service members, noting the United States Armed Forces is “a widely diverse force. We look at E Pluribus Unum on our coins. Out of many, one. They were simply emphasizing on the battlefield we are one team and that’s the way we stay.”

It has now been widely reported that Mattis quietly intervened to scotch efforts by anti-LGBT Reps. Duncan Hunter and Vicky Hartzler to get a version of the trans ban passed through Congress. Nor did he object when Marine Corps Gen. Joseph Dunford, Chairman of the Joint Chiefs, said the current policy of open service would remain in effect until it is formally replaced or when Navy Secretary Spencer said “any patriot” should be allowed to serve, echoing other commanders supporting their trans service members.

However, Mattis also noted that the military chain of command requires him to follow orders given by the civilian commander-in-chief. “You all elected — the American people elected the commander in chief. I — they didn’t elect me. So the commander in chief in our country and our system of government is elected by the people. He has that authority and responsibility. So that was fully within his responsibility,” Mattis said.

Mattis flagged that he expected the guidance “very soon,” after which “we will study it and come up with what the policy should be.”

It is unclear how long it will take to study the guidance and come up with a policy, considering that the Pentagon is already investigating four serious incidents with the Navy involving numerous deaths—raising questions about military readiness in the forward Asian theatre as North Korea continues saber-rattling. Additionally, Trump is sending roughly 4,000 more troops into the 16-year-old war in Afghanistan, while also fighting a war in Iraq, a conflict in Syria and in hotspots like Somalia.

Ignobly, Trump called for unity during his Afghanistan speech as the ban was being prepared. “[All service members] are bound together by common purpose, mutual trust, and selfless devotion to our nation and to each other,” Trump said. “Loyalty to our nation demands loyalty to one another. Love for America requires love for all of its people. When we open our hearts to patriotism, there is no room for prejudice, no place for bigotry, and no tolerance for hate.”

The White House senior official source — who spoke to the Blade on condition of anonymity — said Vice President Mike Pence is the driving force behind the ban. In fact, he has been spearheading the trans ban reinstatement since last May, at the behest of conservative leaders such as Tony Perkins, head of the Family Research Council, and scores of retired anti-LGBT military officers.

“[Trump] makes decisions based upon what he believes is right, but more importantly, what he committed to,” Perkins told the Christian Broadcast Network after the tweets. “He’s only doing what he committed he would do.”

Trump’s fear of his evangelical base is more powerful than his promises to the LGBT community, justifying the ban by saying: “It’s been a very difficult situation and I think I’m doing a lot of people a favor by coming out and just saying it. As you know, it’s been a very complicated issue for the military, it’s been a very confusing issue for the military, and I think I’m doing the military a great favor.”

Fact check: an estimated 6,000 trans service members have been serving openly without incident since the original ban was lifted by then-Defense Secretary Ash Carter in July 2016, after a year of study and deliberation.

News of the ban prompted the California Legislative LGBT Caucus to introduce a Resolution saying California would protect its own trans service members. California is home to more than 190,000 active and reserve service people on three army bases, seven marine bases, 10 navy bases, six air force bases and five reserve and numerous U.S. Coast Guard bases.

“Trump’s decision to ban transgender people from serving in the U.S. military is offensive, misguided, and contrary to our American values,” said Assembly member Evan Low (D-Silicon Valley), Chair of the California Legislative LGBT Caucus, after introducing Assembly Joint Resolution 22 on Aug. 23. “The thousands of transgender military service members who have put their lives on the line for our country deserve better. The California Legislative LGBT Caucus stands by our transgender service members and will do everything in our power to prevent further discrimination.”

The LGBT Caucus cites a Pentagon-commissioned study by the RAND Corporation that estimated medical care for transgender service members would cost approximately $8 million a year of the Pentagon’s $600 billion budget—“compared to $84 million, which the United States military currently spends on Viagra and other erectile dysfunction drugs,” the Caucus says in a press release.

“As an American, a veteran and a lesbian—I am deeply troubled by President Trump’s recent announcement that transgender people will be banned from military service,” said Assembly member Susan Talamantes Eggman (D-Stockton). “Americans who love their country and feel a call to duty—in the form of military service—should be lifted up for their courage and sacrifice, rather than pushed out!”

“Military rules and regulations allow trans people to serve their country, and even the commander-in-chief cannot change those via Twitter. Thousands of trans service members on the front lines deserve better from their commander-in-chief. Discrimination doesn’t make us safer, but it does exclude those with the desire and talents to serve our country. Their service matters, their lives matters, and the CA LGBT Caucus stands with our trans service-members,” said Sen. Ricardo Lara (D-Bell Gardens), vice chair of the California Legislative LGBT Caucus.

Interestingly, at the end of the resolution, the Caucus notes what could prove to be a wrinkle in Trump’s plan. “Resolved, That the Legislature of the State of California calls upon the Governor of California to direct the California National Guard, the California Air National Guard, and the other Armed Forces of the state to take no action that discriminates against transgender service members in enlistment, promotion, or any other aspect of their service, on the basis of their gender identity or expression, unless superseded by federal law, regulation, or formal directive from the United States Department of Defense.”

But what happens if and when transgender members of the state National Guard are called up and federalized? Low’s office says they are looking into that. AJR 22 will be heard on the Assembly floor in the coming weeks.

Next up are the lawsuits. GLAD and the National Center for Lesbian Rights already filed a“Doe v. Trump” lawsuit on Aug. 9 in federal court in D.C., seeking an injunction against Trump’s directive to reinstate a ban. A joint lawsuit from Lambda Legal and OutServe-SLDN, with lots of amicus briefs, will no doubt be coming soon.

It will be interesting to see if the same outrage demonstrated at Trump’s alignment with white supremacists will greet the ban on the patriotic right of transgender Americans to serve their country.

UPDATE:  OutServe-SLDN sent out this angry press release moments after the news became public. They intend to file a lawsuit with Lambda Legal as soon as they see and scrutinize the 2 1/2 page memo:

OutServe-SLDN Condemns White House Purge of Trans Service Members

(WASHINGTON) August 24, 2017– Breaking faith with top generals and admirals, President Trump’s White House will issue guidance to the Department of Defense, per the Wall Street Journal, which would effectively purge anyone found to be transgender from the armed services. This policy would purge thousands of currently serving transgender troops over the coming months and years by denying them reenlistment; threatening to cut off their healthcare; and would make permanent a ban on recruiting transgender troops that was set to expire later this year.

The following can be attributed to OutServe-SLDN Executive Director Matt Thorn:

“The President’s order to remove transgender service members from the United States armed forces is nothing less than a purge. He is implementing this purge based on bigotry, motivated by agents of an ideology that has no concern for the national defense, and in blatant disregard of the experience of career officers who spent more than a year developing and implementing the current policy.

It is inconceivable that a man with a demonstrated incompetence in managing the small staff of the White House should have any credibility when it comes to making sound personnel decisions that will effect a fighting force of more than 1.8 million men and women.

We recognize this purge for what it is – a discriminatory attack on the people who have volunteered their lives for the defense of the country. It is arbitrary and capricious, a callous and questionable exercise of constitutional authority which is beneath the dignity of a Commander-in-Chief.

We condemn the actions of the White House in initiating this purge. We condemn the disregard that the President has shown to transgender men and women who wear the uniform. We condemn the intent of any person who would make it the mission of United States military to discriminate against the very citizens they are charged to defend. And we condemn the indifference of any elected official who does not now stand up for both military personnel and the LGBT community by opposing this purge.

OutServe-SLDN along with Lambda Legal will swiftly be filing a lawsuit in federal court to challenge this action.”

OutServe-SLDN’s legal team will provide any and all advocacy and legal assistance possible to ensure the transgender community is able to openly serve our country in its armed forces. Individuals seeking assistance may contact the legal department directly at 800-538-7418or [email protected]

###

OutServe-SLDN (OS-SLDN) is the largest non-profit, legal services, advocacy and policy organization dedicated to bringing about full LGBT equality to America’s military and ending all forms of discrimination and harassment of military personnel on the basis of sexual orientation and gender identity. For more information, visit www.outserve-sldn.org.

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Patrick O’Connell, acclaimed AIDS activist, dies at 67

Played key role in creating red ribbon for awareness

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Activist Patrick O’Connell was instrumental in creating the red ribbon to promote AIDS awareness. (Photo courtesy of Allen Frame; courtesy Visual AIDS)

Patrick O’Connell, a founding director of the New York City-based AIDS advocacy group Visual AIDS who played a lead role in developing the internationally recognized display of an inverted, V-shaped red ribbon as a symbol of AIDS advocacy, died on March 23 at a Manhattan hospital from AIDS-related causes, according to the New York Times. He was 67.

Visual AIDS said in a statement that O’Connell held the title of founding director of the organization from 1980 to 1995.

During those years, according to the statement and others who knew him, O’Connell was involved in the group’s widely recognized and supported efforts to use art and artist’s works to advocate in support of people with HIV/AIDS and efforts to curtail the epidemic that had a devastating impact on the art world.

Thanks to a grant from the Art Matters foundation, Visual AIDS was able to retain O’Connell as its first paid staff member in 1990, the group said in its statement.

“Armed with a fax machine and an early Macintosh computer, Patrick helped Visual AIDS grow from a volunteer group to a sustainable non-profit organization,” the statement says. “A passionate spokesperson for the organization, he helped projects like Day Without Art, Night Without Light, and the Red Ribbon reach thousands of people and organizations across the world,” the group says in its statement.

“We were living in a war zone,” the statement quoted O’Connell as saying in a 2011 interview with the Long Island newspaper Newsday. “But it was like a war that was some kind of deep secret only we knew about,” O’Connell said in the interview. “Thousands were dying of AIDS. We felt we had to respond with a visible expression,” he told the newspaper.

With O’Connell’s help, Visual AIDS in 1989 organized the first annual Day Without Art in which dozens of galleries and museums in New York and other cities covered art works with black cloths to symbolize the mourning of those who died of AIDS. Among those participating were the Brooklyn Museum, the J. Paul Getty Museum in Los Angeles, and the Metropolitan Museum of Art in New York, which replaced a Picasso painting with a “somber informational placard,” according to the New York Times.

In 1990 O’Connell helped Visual AIDS organize the first Night Without Light, which was held at the time of World AIDS Day. New York City’s skyscraper buildings, bridges, monuments, and Broadway theaters turned off their lights for 15 minutes to commemorate people who lost their lives to AIDS, the New York Times reported.

In the kickoff of its Red Ribbon Project in 1991, McConnell helped organize volunteers to join “ribbon bees” in which thousands of the ribbons were cut and folded for distribution around the city, the Times reports. Those who knew McConnell said he also arranged for his team of volunteers to call Broadway theaters and producers of the upcoming Tony Awards television broadcast to have participants and theater goers display the red ribbons on their clothes.

Among those displaying a red ribbon on his label at the Tony Awards broadcast was actor Jeremy Irons, who was one of the hosts. In later years, large numbers of celebrities followed the practice of wearing the red ribbon, and in 1993 the U.S. Postal Service issued a red ribbon stamp.

The Times reports that O’Connell was born and raised in Manhattan, where he attended Fordham Preparatory School and later graduated from Trinity College in Hartford, Conn., in 1973 with a bachelor’s degree in history. According to Visual AIDS, O’Connell served as director of the Hallwalls arts center in Buffalo, N.Y. from 1977 to 1978 before returning to New York City to work for a gallery called Artists Space.

The Times reports that O’Connell learned in the middle 1980s that he had contracted AIDS and began a regimen of early AIDS treatment with a cocktail of over 30 pills a day. His involvement with Visual AIDS, which began in 1989, ended on an active basis in 1995 when his health worsened, the Times reports.

As one of the last remaining survivors of his New York contemporaries who had HIV beginning in the 1980s, O’Connell continued in his strong support for AIDS-related causes through 2000s and beyond, people who knew him said.
Visual AIDS says it is gathering remembrances and photos for a tribute post for O’Connell on its website. It has invited people to share their memories of him by sending written contributions and images via email to: [email protected].

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Activists concerned over removal of D.C. AIDS office executive

Dept. of Health declines to explain abrupt replacement of Kharfen

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annual AIDS report, gay news, Washington Blade
D.C. Department of Health Director Dr. LaQuandra Nesbitt abruptly dismissed Michael Kharfen from his position. (Photo via Linkedin)

The leaders of several local and national AIDS organizations have expressed concern over a decision by D.C. Department of Health Director Dr. LaQuandra Nesbitt to abruptly dismiss Michael Kharfen from his position since 2013 as Senior Deputy Director of the department’s HIV/AIDS, Hepatitis, Sexually Transmitted Disease and Tuberculosis Administration.

Under the leadership of Kharfen, who is gay, the Department of Health entity commonly referred to as HAHSTA has played a lead role in what AIDS advocacy organizations consider to be D.C.’s highly successful efforts in recent years to lower the rate of new HIV infections among city residents.

Alison Reeves, a spokesperson for Nesbitt, declined to give a reason for Kharfen’s termination, saying the DOH does not comment on “personnel matters.” Reeves said DOH official Dr. Anjali Talwalker has been named as interim Senior DOH Deputy Director for HAHSTA while a national search is being conducted for a permanent HAHSTA leader.

People who know Kharfen have said he has declined at this time to publicly comment on his departure from HAHSTA. He could not immediately be reached by the Blade for comment.

“Michael Kharfen’s departure is a real loss to HAHSTA, the D.C. community, and nationally,” said Paul Kawata, executive director of the D.C.-based National Minority AIDS Council. “It is important to remember that when Michael took over HAHSTA there were real challenges and concerns,” Kawata said.

“He transformed the agency and built strong relationships with local organizations and D.C.-based national organizations,” said Kawata. “His reasoned voice and ability to collaborate will be sorely missed.”

At least three sources familiar with HAHSTA, who spoke on condition of not being identified, have said reports have surfaced internally from DOH that director Nesbitt is planning to reorganize several DOH divisions, including HAHSTA.

The sources say people familiar with the reported reorganization expressed alarm that HAHSTA would be dismantled as a separate DOH entity, with AIDS-related programs operated by other DOH divisions.

“Some think she wants to use the funds earmarked for HAHSTA for other things,” said one of the sources. “She could be jeopardizing federal grant money for HIV and hepatitis,” the source said.

The Washington Blade raised questions surrounding Kharfen’s departure with John Falcicchio, the D.C. Deputy Mayor for Planning and Economic Development, who also serves as Mayor Muriel Bowser’s chief of staff, at a press conference on Monday on an unrelated topic. Falcicchio said he would try to arrange for mayoral spokesperson LaToya Foster to respond to the Blade’s questions about a possible DOH reorganization of HAHSTA and the issues surrounding Kharfen’s departure from DOH.

Neither Foster nor another mayoral spokesperson had responded as of late Tuesday.

“Michael Kharfen’s leaving D.C. government is a huge loss to the D.C. community and potentially puts at risk federal grants for HIV, sexually transmitted diseases, and hepatitis,” according to David Harvey, executive director for the D.C.-based National Coalition of STD Directors.

“If his departure is about a consolidation of agencies within DOH, then the community will be the loser,” Harvey said.

“We need HAHSTA to continue,” he said, adding, “The mayor should reverse this decision and reinstate Michael Kharfen.”

Sources familiar with the D.C. government’s personnel polices have said that Kharfen and other high-level officials holding positions such as that of a senior deputy director are considered “at will” employees who serve at the pleasure of the mayor and the agency head for whom they work. They can be removed for any reason or no reason, those familiar with the personnel policy say.

Before becoming the DOH Senior Deputy Director in charge of HAHSTA in 2013, Kharfen served from 2006 to 2013 as HAHSTA’s Bureau Chief for Partnerships, Capacity Building, and Community Outreach. Those who know Kharfen said in that role he is credited with working closely with a wide range of local and national organizations that provide services for people with HIV/AIDS as well as other public health organizations.

Among them is the D.C. Appleseed Center for Law & Justice, which has worked closely with HAHSTA and the DOH to develop, among other things, a plan to significantly curtail new HIV infections in the city by 2020.

Other groups working closely with Kharfen have been the Washington AIDS Partnership, the National Coalition of STD Directors, the Prevention Access Campaign, and the HIV-Hepatitis Policy Institute.

“Under Michael’s leadership, D.C. was instrumental in pioneering many new innovations in preventing and treating HIV that were later adopted by other jurisdictions,” said Carl Schmid, executive director of the D.C.-based HIV-Hepatitis Institute. “And if you look at the results, I think it demonstrates success,” Schmid said.

“I do not know any details of his departure, but I know he will be missed not only in D.C. but across the country,” Schmid told the Blade.

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Trans teacher, P.G. County schools face off in discrimination lawsuit

Officials deny charges of harassment, retaliation

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Jennifer Eller, gay news, Washington Blade
Jennifer Eller alleges the P.G. County school system subjected her to discrimination and harassment. (Photo courtesy of Lambda Legal)

Attorneys representing transgender former English teacher Jennifer Eller in a 2018 discrimination lawsuit against the Prince George’s County Public Schools and the county’s Board of Education filed a motion in federal court last week asking a judge to rule in support of Eller’s two main allegations against school officials.

The motion for partial summary judgment, filed on April 28 in U.S. District Court for the District of Maryland, calls on the court to affirm Eller’s charges that school officials acted illegally by failing to intervene when she was subjected to a hostile work environment for five years that included abuse and harassment by students, parents, fellow teachers and supervisors and retaliation by administrators.

The motion also calls on the court to affirm that Eller, 39, was forced to resign from her teaching job in 2017 because of the harassment and discriminatory action based on her gender and gender identity.

Eller’s motion for summary judgement, which calls for a ruling in her favor on the allegations, came one month after attorneys for the P.G. County Schools and the school board filed their own motion seeking summary judgment against all the allegations in Eller’s lawsuit. If U.S. Magistrate Judge Charles B. Day rules in favor of the school system’s motion, which court observers do not think will happen, it would result in the dismissal of the lawsuit.

The motion filed by Eller’s attorneys calls on the court to rule against the school system’s motion for summary judgment.

Court records show that the motions by the opposing sides in the case came after Magistrate Judge Day issued a March 26 directive requiring the two sides to attend a May 7 settlement conference in which an effort must be made to settle the case before it goes to trial.

Day’s directive, in the form of a letter to the attorneys, called for Eller and her attorneys to submit 10 business days in advance of the conference a “written demand” for what a settlement agreement should include. Day’s letter calls for P.G. school officials and their attorneys to submit five days in advance of the conference a “written offer” to Eller for what a settlement should consist of.

“For years, I was aggressively misgendered, attacked and harassed in the hallways and even in my own classroom by students, peers and supervisors,” Eller said in a statement released by the LGBTQ litigation group Lambda Legal, which, along with the D.C. law firm Arnold & Porter, is representing Eller.

“My pleas for help and for sensitivity training on LGBTQ issues for students and staff, were ignored,” Eller said. “The relentless harassment stripped me of the joy of teaching and forced me to resign,” said Eller. “It is time for Prince George’s County Public Schools to be held accountable.”

Eller charges in her lawsuit that the harassment and discriminatory action against her began in 2011 when she began presenting as female during the school year. The lawsuit says school officials initially responded to her complaints about the harassment by demanding that she stop dressing as a woman and return to wearing men’s clothes, which she refused to do.

The lawsuit says she was forced to resign from her teaching job in 2017 after being diagnosed with post-traumatic stress disorder due to the alleged abuse she faced on the job.

In addition to naming P.G. County Public Schools and the P.G. County Board of Education as defendants, the lawsuit also names as a defendant the school system’s CEO Monica Goldson.

The lawsuit charges that the school district and its administrators violated Title VII of the U.S. Civil Rights Act of 1964, Title IX of the U.S. Education Amendments of 1972, the Equal Protection Clause of the U.S. Constitution, the Maryland Fair Employment Practices Act, and the Prince George’s County nondiscrimination code.

In its official response to the lawsuit, attorneys for the school system denied Eller’s allegations and claimed the school system had in place nondiscrimination policies that covered gender identity and sexual orientation for school employees and students. The school system also states in its response that Eller may have failed to exhaust administrative remedies required prior to filing a lawsuit and that the lawsuit missed deadlines for certain legal claims.

It also says her legal claims may be disqualified because of her “voluntary resignation of employment,” an assertion disputed by Eller’s attorneys who say the resignation was forced by the abuse and harassment Eller faced on the job.

Her attorneys also point out that Eller filed a complaint against school officials in 2015 before the U.S. Equal Employment Opportunity Commission, which conducted an extensive investigation into Eller’s complaint. The attorneys note that in 2017 the EEOC issued a letter stating that there was “reasonable cause” to believe Eller had been subjected to unlawful treatment based on her sex and gender identity.

“After she filed this discrimination charge, the school administration retaliated against Ms. Eller by taking away her advanced placement English class and opening a disciplinary hearing against her that ended in no discipline,” the Lambda Legal statement says.

P.G. County school officials have declined requests from the Washington Blade for comment on Eller’s lawsuit, saying they have a policy of not commenting on pending litigation.

Among those expressing concern over the issues raised in the Eller lawsuit is College Park, Md., Mayor Patrick Wojahn, who is gay. College Park, which is home to the University of Maryland, is in Prince George’s County.

“It’s important for our county and for the entire community, especially for the kids, that the schools be places free of harassment and discrimination,” Wojahn said. “And if what Ms. Eller says is true, then it shows that the school system has fallen seriously short.”

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