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Law schools weigh bans on military recruiters over trans policy

Solomon Amendment blocks fed’l funds to such universities



Elena Kagan, Supreme Court, gay news, Washington Blade

As dean of Harvard Law School, Associate Justice Elena Kagan tried to find a compromise on banning military recruiters in the days of “Don’t Ask, Don’t Tell.” (Washington Blade photo by Michael Key)

With President Trump directing the U.S. military to enact a prohibition on transgender military service, at least two law schools — the Vermont Law School and Mitchell Hamline School of Law — are considering whether to enact a ban on military recruiters in response, which would be similar to policies they had under “Don’t Ask, Don’t Tell.”

Maryellen Apelquist, a spokesperson for the Vermont Law School, said in response to a Washington Blade inquiry the school will consider banning military recruiters in the aftermath of Trump’s memo.

“President Trump’s ban on transgender people joining the military is of grave concern,” Apelquist said. “The Vermont Law School administration will take a hard look at the details of the policy to determine if our discrimination policy will allow military recruiters on the VLS campus.”

The other school to ban military recruiters under “Don’t Ask, Don’t Tell,” William Mitchell College Law School, has since merged with its longtime rival, the Hamline University School of Law to become the Mitchell Hamline School of Law.

Doug Belden, a Mitchell Hamline School of Law spokesperson, said a ban on military recruiters “is being considered by members of Mitchell Hamline leadership and faculty,” but a decision wouldn’t be reached by Blade deadline on Wednesday.

A senior Mitchell Hamline faculty member, who spoke on condition of anonymity, said nothing has been decided, no meetings have taken place on the issue and discussion has been limited to one or two emails.

With the nation poised to enact a policy similar to “Don’t Ask, Don’t Tell” — except a ban on transgender service members as opposed to openly gay service members — all the challenges and opposition to the now-repealed 1993 law may soon reemerge.

One question is whether law schools with non-discrimination policies will continue to cooperate with military recruiters if the armed forces refuse to allow transgender people in its ranks. Such discrimination would conflict with non-discrimination policies that ban anti-transgender discrimination and arguably those that ban discrimination on the basis of sex.

In the early days of “Don’t Ask, Don’t Tell,” many law schools under guidance from the Association of American Law schools, which bars its members from discriminating on the basis of sexual orientation, allowed military recruiters on campus, but didn’t facilitate meetings between recruiters and students, provide on-campus meeting spaces or allow recruiters access to the roster of law school students.

That changed in 1996 after passage of the Solomon Amendment, which allows the secretary of defense to withhold federal funding to schools — not just from the Pentagon, but from other arms of the U.S. government, including the Department of Education, the Department of Health & Human Services and the National Nuclear Security Administration — if those schools inhibit military recruiters, or even deny them access to lists of law students.

The Solomon Amendment was challenged in federal court on the basis it violated rights to free speech and freedom of association — an argument that prevailed before the U.S. Third Circuit Court of Appeals. However, the U.S. Supreme Court upheld the law in 2006 as constitutional in a unanimous decision written by U.S. Chief Justice John Roberts.

“The law schools object to having to treat military recruiters like other recruiters, but that regulation of conduct does not violate the First Amendment,” Roberts wrote. “To the extent that the Solomon Amendment incidentally affects expression, the law schools’ effort to cast themselves as just like the schoolchildren in Barnette, the parade organizers in Hurley, and the Boy Scouts in Dale plainly overstates the expressive nature of their activity and the impact of the Solomon Amendment on it, while exaggerating the reach of our First Amendment precedents.”

Despite the Solomon Amendment and the Supreme Court decision upholding the law, two schools — the Vermont Law School and William Mitchell College of Law — were adamant in outright refusing to cooperate with military recruiters. That position came at the expense of federal funds, although the schools had less in federal funding to begin with compared to large research universities.

(As then-dean of Harvard Law School, U.S. Associate Justice Elena Kagan tried to walk a middle line, writing in email to students she “abhor[s] the military’s discriminatory recruitment policy,” but at the same time working out a compromise that enabled a veterans’ organization to sponsor military recruiters on campus as opposed to the U.S. military itself. After the Supreme Court upheld the Solomon Amendment, she allowed military recruiters full access to Harvard’s campus. Kagan explained her position at the time and views against “Don’t Ask, Don’t Tell” during her 2010 confirmation hearing.)

For a brief time in 1998, the Vermont Law School and William Mitchell College Law School reversed itself and allowed military recruitment on campus when the Departments of Defense and Education determined the U.S. government could withhold federal student loan aid as a result of the Solomon Amendment. Gay former Rep. Barney Frank in 1999 pushed through Congress a two-sentence law clarifying the law doesn’t apply to students, allowing the Vermont Law School and William Mitchell College Law School to resume its ban on military recruitment.

After “Don’t Ask, Don’t Tell” was lifted in 2011 under former President Obama, the Vermont Law School and William Mitchell College Law School resumed cooperation with military recruiters. It remains to be seen whether those schools will resume their bans — or if other schools will begin new ones — now that Trump has directed the U.S. military to engage in anti-trans discrimination.

If Vermont Law School or Mitchell Hamline School of Law resume their bans on military recruiters, the schools could once again forfeit federal funds.

Apelquist said the school lost between $300,000 and $500,000 as a result of the Solomon Amendment in the days of “Don’t Ask, Don’t Tell,” but doesn’t yet have an estimate of current federal funds.

The Association of American Law Schools didn’t respond to multiple requests from the Blade to comment on whether it would have any guidance to schools in the wake of Trump’s order to ban transgender service members.

It should be noted those schools sought fit to allow military recruiters on campus after “Don’t Ask, Don’t Tell” repeal even though the ban on transgender service from the 1980s was still in place — arguably a signal that anti-transgender bias didn’t warrant a ban on military recruiters. Trump’s ban essentially puts the transgender ban back in place after it was lifted during Obama’s final year in office.

LGBT military groups seeking to challenge Trump’s transgender military ban said they’d welcome efforts from law schools against the new policy, but were optimistic that would be unnecessary based on pending litigation. Three lawsuits — two filed this week, one before the Trump memo — are now calling on the federal court system to block the transgender ban from going into effect.

Matt Thorn, executive director of OutServe-SLDN, said law schools should decide their own policy, but the transgender ban “does warrant discussion on their part and with their respective governing bodies.”

“OutServe-SLDN feels confidant that we will persevere in federal court,” Thorn said. “Hopefully it doesn’t come to barring recruiters from finding young, bright and dedicated individuals who want to serve in our armed forces, including those who are transgender.”

Ashley Broadway-Mack, president of the American Military Partner Association, predicted federal courts would take action against the ban before law schools would need to act.

“Any qualified American should be able to serve their country, regardless of their gender identity,” Broadway-Mack said. “Donald Trump’s directive telling the military to single out and discriminate against transgender service members and qualified recruits is unconstitutional, and we are hopeful the courts will reverse his abominable and unpatriotic action. We believe that justice will prevail and law schools will not feel compelled to restrict military recruiters access.”

D’Arcy Kemnitz, executive director of the National LGBT Bar Association, said she’s not yet ready to call for action from law schools based on a statement this week from Defense Secretary James Mattis, who said despite the ban transgender people currently in service will be able to stay pending a review.

“The LGBT Bar is grateful to the U.S. military and those who serve bravely and without reservation every day,” Kemnitz said. “Asking law schools to prevent recruitment on their campuses is premature, especially in light of Secretary Mattis’ statement on Tuesday on the continued service of trans individuals.”

Kemnitz added the National LGBT Bar Association itself has allowed Judge Advocate General’s Corps military recruiters to come each year to the annual career fair hosted by the National LGBT Bar Association, and those efforts “make the armed services more diverse, not less.”


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Bill to ban conversion therapy dies in Puerto Rico Senate committee

Advocacy group describes lawmakers as cowards



Puerto Rico Pulse nightclub victims, gay news, Washington Blade


A Puerto Rico Senate committee on Thursday killed a bill that would have banned so-called conversion therapy on the island.

Members of the Senate Community Initiatives, Mental Health and Addiction Committee voted against Senate Bill 184 by an 8-7 vote margin. Three senators abstained.

Amárilis Pagán Jiménez, a spokesperson for Comité Amplio para la Búsqueda de la Equidad, a coalition of Puerto Rican human rights groups, in a statement sharply criticized the senators who opposed the measure.

“If they publicly recognize that conversion therapies are abuse, if they even voted for a similar bill in the past, if the hearings clearly established that the bill was well-written and was supported by more than 78 professional and civil entities and that it did not interfere with freedom of religion or with the right of fathers and mothers to raise their children, voting against it is therefore one of two things: You are either a hopeless coward or you have the same homophobic and abusive mentality of the hate groups that oppose the bill,” said Pagán in a statement.

Thursday’s vote comes against the backdrop of continued anti-LGBTQ discrimination and violence in Puerto Rico.

Six of the 44 transgender and gender non-conforming people who were reported murdered in the U.S. in 2020 were from Puerto Rico.

A state of emergency over gender-based violence that Gov. Pedro Pierluisi declared earlier this year is LGBTQ-inclusive. Then-Gov. Ricardo Rosselló in 2019 signed an executive order that banned conversion therapy for minors in Puerto Rico.

“These therapies lack scientific basis,” he said. “They cause pain and unnecessary suffering.”

Rosselló issued the order less than two weeks after members of the New Progressive Party, a pro-statehood party  he chaired at the time, blocked a vote in the Puerto Rico House of Representatives on a bill that would have banned conversion therapy for minors in the U.S. commonwealth. Seven out of the 11 New Progressive Party members who are on the Senate Community Initiatives, Mental Health and Addiction Committee voted against SB 184.

“It’s appalling. It’s shameful that the senators didn’t have the strength and the courage that our LGBTQ youth have, and it’s to be brave and to defend our dignity and our humanity as people who live on this island,” said Pedro Julio Serrano, founder of Puerto Rico Para [email protected], a Puerto Rican LGBTQ rights group, in a video. “It’s disgraceful that the senators decided to vote down this measure that would prevent child abuse.”

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Undocumented LGBTQ immigrants turn to Fla. group for support

Survivors Pathway is based in Miami



Survivors Pathway works with undocumented LGBTQ immigrants and other vulnerable groups in South Florida. (Photo courtesy of Francesco Duberli)


MIAMI – The CEO of an organization that provides support to undocumented LGBTQ immigrants says the Biden administration has given many of his clients a renewed sense of hope.

“People definitely feel much more relaxed,” Survivors Pathway CEO Francesco Duberli told the Washington Blade on March 5 during an interview at his Miami office. “There’s much hope. You can tell … the conversation’s shifted.”

Duberli — a gay man from Colombia who received asylum in the U.S. because of anti-gay persecution he suffered in his homeland — founded Survivors Pathway in 2011. The Miami-based organization currently has 23 employees.

Survivors Pathway CEO Francesco Duberli at his office in Miami on March 5, 2021. (Washington Blade photo by Yariel Valdés González)

Duberli said upwards of 50 percent of Survivors Pathway’s clients are undocumented. Duberli told the Blade that many of them are survivors of domestic violence, sexual assault and human trafficking and victims of hate crimes based on their sexual orientation and gender identity.

“Part of the work that we have done for years is for us to become the bridge between the communities and law enforcement or the justice system in the United States,” said Duberli. “We have focused on creating a language that helps us to create this communication between the undocumented immigrant community and law enforcement, the state attorney’s office and the court.”

“The fear is not only about immigration,” he added. “There are many other factors that immigrants bring with them that became barriers in terms of wanting to or trying to access the justice system in the United States.”

Duberli spoke with the Blade roughly a week after the Biden administration began to allow into the U.S. asylum seekers who had been forced to pursue their cases in Mexico under the previous White House’s “Remain in Mexico” policy.

The administration this week began to reunite migrant children who the Trump administration separated from their parents. Title 42, a Centers for Disease Control and Prevention rule that closed the Southern border to most asylum seekers and migrants because of the coronavirus pandemic, remains in place.

Duberli told the Blade that Survivors Pathway advised some of their clients not to apply for asylum or seek visa renewals until after the election. Duberli conceded “the truth of the matter is that the laws haven’t changed that much” since Biden became president.

Survivors Pathway has worked with LGBTQ people in U.S. Immigration and Customs Enforcement custody in South Florida. American Civil Liberties Union National Political Director Ronald Newman in an April 28 letter it sent to Homeland Security Secretary Alejandro Mayorkas called for the closure of the Krome North Service Processing Center in Miami, the Glades County Detention Center near Lake Okeechobee and 37 other ICE detention centers across the country.

The road leading to the Krome North Service Processing Center in Miami on June 7, 2020. (Washington Blade photo by Michael K. Lavers)

Survivors Pathway responded to trans woman’s murder in 2020

Survivors Pathway has created a project specifically for trans Latina women who Duberli told the Blade don’t know they can access the judicial system.

Duberli said Survivors Pathway works with local judges and police departments to ensure crime victims don’t feel “discriminated, or outed or mistreated or revictimized” because of their gender identity. Survivors Pathway also works with Marytrini, a drag queen from Cuba who is the artistic producer at Azúcar, a gay nightclub near Miami’s Little Havana neighborhood.

Marytrini and Duberli are among those who responded to the case of Yunieski “Yuni” Carey Herrera, a trans woman and well-known activist and performer from Cuba who was murdered inside her downtown Miami apartment last November. Carey’s boyfriend, who had previously been charged with domestic violence, has been charged with murder.

“That was an ongoing situation,” noted Duberli. “It’s not the only case. There are lots of cases like that.”

Duberli noted a gay man in Miami Beach was killed by his partner the same week.

“There are lots of crimes that happen to our community that never gets to the news,” he said. “We got those cases here because of what we do.”

Yunieski “Yuni” Carey Herrera was murdered in her downtown Miami apartment in November 2020. (Photo courtesy of social media)

















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

Played key role in creating red ribbon for awareness



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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