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Latest ruling could give Supreme Court crack at trans military ban

Trump administration barred from enforcing its discriminatory policy

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David Bright, Startwaune Anderson, conversion therapy, gay news, Washington Blade

The Supreme Court may get another crack at the transgender military ban after the latest court decision against it.

A federal appeals court has reaffirmed its decision to keep in place an injunction barring the Trump administration from enforcing its transgender military ban, setting the stage for an initial review of the policy at the U.S. Supreme Court before U.S. Associate Justice Anthony Kennedy steps down.

The U.S. Ninth Circuit Court of Appeals denied on Wednesday the U.S. Justice Department’s request to dissolve a preliminary injunction against the ban, which the administration made in the aftermath of Defense Secretary James Mattis’ report justifying President Trump’s policy

The Ninth Circuit had previously denied the Trump administration’s request to dissolve the injunction instituted by U.S. District Judge Marsha Pechman, but the Justice Department made another attempt after Mattis delivered his report to Trump in May. The administration has maintained Mattis’ recommendations justify the transgender military ban, although transgender advocates say the recommendation is filled with junk science.

But in a two-page decision, a three-judge panel on the Ninth Circuit rebuffed the Trump administration’s request to dissolve the stay, determining a reversal of the injunction would alter the status quo as litigation against the ban proceeds through the courts.

“The district court’s December 11, 2017 preliminary injunction preserves the status quo, allowing transgender service members to serve in the military in their preferred gender and receive transition-related care,” the decision says. “Appellants ask this court to stay the preliminary injunction, pending the outcome of this appeal, in order to implement a new policy. Accordingly, a stay of the preliminary injunction would upend, rather than preserve, the status quo.”

LGBT rights groups that filed the lawsuit hailed the decision as an affirmation of transgender people serving in the military and as a blow to the Trump administration. The ruling marked the second time the Ninth Circuit rebuffed the administration on the transgender military service ban, leaving the tally of eight rulings from six courts in favor of halting the policy.

The lawsuit, Karnoski v. Trump, was filed by Lambda Legal and OutServe-SLDN on behalf of nine transgender people – six current service members and three wishing to serve – as well as three organizational plaintiffs: the Human Rights Campaign, the Seattle-based Gender Justice League, and the American Military Partner Association.

Sarah McBride, a spokesperson for the Human Rights Campaign, said as a result of the decision “another court has held off Donald Trump and Mike Pence’s desperate attempts to impose their extreme anti-LGBTQ agenda on the U.S. military.”

“After a string of victories for transgender troops and enlistees at the district court level, this appeals court ruling reinforces that there is simply no need or legitimate reason to bar capable and willing transgender Americans from serving their country,” McBride added.

But the ruling from the Ninth Circuit presents the Trump administration with an opportunity — yet again — to take up the issue with the Supreme Court.

The Justice Department could file a request to stay the injunction with Kennedy, who’s responsible for issuing stays on decisions from the Ninth Circuit. Kennedy could decide the matter himself, but would likely refer the matter to the entire court for a determination.

Although Kennedy has signaled he’ll retire from the court, his departure won’t happen until the end of this month, which means he’d have an opportunity to weigh in on the matter before stepping down. It will potentially be his last decision from the bench and his last LGBT case after writing the decisions in four milestone gay rights cases after 30 years on the court.

Jon Davidson, chief counsel at Freedom for All Americans, said if the Justice Department were to file a stay request before the Supreme Court, the administration “likely will file such a motion before the end of this week.”

“I think that, assuming the Court considers any such stay request before July 31st, Justice Kennedy might well join Justices Ginsburg, Breyer, Sotomayor and Kagan in denying the request (which would mean a stay request would be denied), based on his views about the harms of the government denying individuals ‘equal dignity’ and because the Karnoski case is just one of four in which district courts have enjoined the transgender military ban,” Davidson said. “If the court does not consider a stay request until August, it may be hard for DOJ to get five votes in favor of a stay (which would require at least one of Ginsburg, Breyer, Sotomayor or Kagan to vote in favor of a stay).”

If the Justice Department were to ask the Supreme Court for a stay, it would be a reversal of its earlier position on litigation against the transgender military ban.

After the Ninth Circuit’s earlier rebuff last year of the administration on the policy, the Justice Department declared in December it wouldn’t go to the Supreme Court right away, but “wait for DOD’s study and will continue to defend the president’s and secretary of defense’s lawful authority in district court in the meantime.”

Things have changed now because the Pentagon study the Justice Department expected has come out. Nonetheless, the Trump administration is staying mum on its plans.

A Justice Department spokesperson declined to comment in response to the Washington Blade’s question on whether the administration would file a stay request before the Supreme Court.

Peter Renn, senior attorney with the Western Regional Office at Lambda Legal, affirmed the Trump administration “could seek a stay of the preliminary injunction” with the Supreme Court, but said chances for a stay are low.

“If the government does seek a stay, and the request is referred to the full Supreme Court, it is unlikely that a majority of the Supreme Court would allow the government to immediately enforce its discriminatory plan,” Renn said. “If there is a vote on a stay by the end of this month, it is difficult to imagine that Justice Kennedy will want to cap off his tenure on the court by allowing the military to toss aside transgender people, and their sacrifices for our country, as if they were disposable.”

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The White House

Biden’s Pride month proclamation: ‘Our nation faces another inflection point’

States across the country have passed anti-LGBTQ laws

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The White House was lit in rainbow colors following the Respect for Marriage Act signing in December 2022. (Washington Blade photo by Michael Key)

Just as the 1969 Stonewall riots marked a transformational time for LGBTQ civil rights in America, the country now faces another critical inflection point, President Joe Biden said in the White House’s proclamation Wednesday honoring Pride month.

This moment is precipitated by the wave of hateful anti-LGBTQ legislation moving through state and local legislatures across the country and amid the escalating violence and threats of violence against the community, the statement notes:

“In 2023 alone, state and local legislatures have already introduced over 600 hateful laws targeting the LGBTQI+ community. Books about LGBTQI+ people are being banned from libraries. Transgender youth in over a dozen states have had their medically necessary health care banned. Homophobic and transphobic vitriol spewed online has spilled over into real life, as armed hate groups intimidate people at Pride marches and drag performances, and threaten doctors’ offices and children’s hospitals that offer care to the LGBTQI+ community. Our hearts are heavy with grief for the loved ones we have lost to anti-LGBTQI+ violence.”

Biden drew parallels between the “LGBTQI+ protestors” who “bravely stood their ground” against the law enforcement dispatched to arrest them more than 50 years ago and the youth organizers leading walkouts in response to discriminatory education laws, along with the “young people and their parents [who] are demonstrating unimaginable courage by testifying in state capitols in defense of their basic rights.”

The statement reaffirms the Biden-Harris administration’s commitment to standing “proudly with the LGBTQI+ community in the enduring struggle for freedom, justice and equality,” chronicling some of the major steps the administration has taken on this front.

Biden highlighted his issuance, on his first day in office, of an executive order prohibiting anti-LGBTQ discrimination, along with his signage last year of the Respect for Marriage Act, which codified protects for the rights of same-sex couples that might otherwise be jeopardized by the U.S. Supreme Court’s conservative supermajority.

The statement then noted the administration’s moves to protect LGBTQ youth by ordering federal agencies to: Combat conversion therapy, “end the crisis of homelessness among LGBTQI+ youth and adults,” and address anti-LGBTQ discrimination in foster care.

Meanwhile, Biden said, the Justice Department is fighting against discriminatory laws targeting transgender youth, while the U.S. Departments of Education and Health and Human Services have drafted rules that would better protect anti-LGBTQ discrimination “in healthcare, at school and in sports” and the White House is developing ways to combat online harassment and abuse that “disproportionately target LGBTQ people.”

Finally, the White House noted: Its rollout last year of the Suicide and Crisis Lifeline for LGBTQ youth, who can now reach specially trained counselors by dialing 988 and then three; the administration’s appointment of historic numbers of LGBTQ appointees at all levels of the federal government; and its repeal of bans preventing trans people from serving in the U.S. Armed Forces.

From passing federal nondiscrimination protections for LGBTQ Americans via the Equality Act to addressing “the crisis of violence against transgender women and girls of color,” Biden acknowledged the work that lies ahead.

“This month and every month,” his proclamation concludes, “let us celebrate the pride that powers the movement for LGBTQI+ rights and commit to doing our part to help realize the promise of America, for all Americans.”

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Pentagon

Defense secretary orders cancellation of drag show at Nev. Air Force base

Event was to have taken place at Nellis AFB on Thursday

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Photo courtesy of U.S. Air Force Public Affairs)

A previously scheduled drag show to kick off Pride month on the sprawling Nellis Air Force Base, an advanced combat aviation training facility for the U.S. Air Force northeast of Las Vegas, was cancelled Wednesday according to a Pentagon official, after U.S. Defense Secretary Lloyd Austin and Gen. Mark Milley, chairman of the Joint Chiefs of Staff, stepped in.

A Pentagon source familiar with the matter told the Washington Blade that Milley informed Air Force Chief of Staff Gen. Charles Q. Brown, Jr., that it is not Pentagon policy to fund drag shows on bases and the show needed to be canceled or moved off base. 

The issue over drag performances was a focus at a House Armed Services Committee hearing earlier this year on March 29, when anti-LGBTQ Congressman Matt Gaetz (R-Fla.) demanded in an angry tone that Austin and Milley explain why drag queen story hours were being hosted on U.S. military installations. The Florida Republican mentioned bases in Montana, Nevada, Virginia and Germany.

In a highly publicized incident in May 2022, Stars and Stripes reported that the Commanding General of the 86th Airlift Wing at Ramstein Air Force Base in Germany had a drag queen story time, that was to be held in honor of Pride month cancelled. 

According to Stars and Stripes, the 86th Air Wing’s public affairs sent a statement to a radical-right anti-LGBTQ news outlet in Canada, the Post Millennial, which had requested comment to its article about the event and also accused the Air Force of pushing a more “woke” agenda among servicemen. 

In a press release, U.S. Sen. Marco Rubio (R-Fla.) took partial credit for the cancellation.

Rubio sent a letter to U.S. Air Force Secretary Frank Kendall regarding the Air Force Library at Ramstein hosting a “Drag Queen Story Time” event for young children of servicemembers. 

Rubio urged him to cancel the event, discipline the staff involved in planning and hosting the event and respond to questions on whether other installations both at home and around the world have done similar events. Following receipt of Rubio’s letter, the Air Force canceled the event. 

“The last thing parents serving their nation overseas should be worried about, particularly in a theater with heightened geopolitical tensions, is whether their children are being exposed to sexually charged content simply because they visited their local library,” Rubio wrote.

Defense Secretary Lloyd J. Austin, III, and Gen. Mark Milley, chair of the Joint Chiefs of Staff, meet with U.S. Army Gen. Scott Miller at Joint Base Andrews in Maryland on July 14, 2021. (Photo by Carlos M. Vazquez, Department of Defense)

A Pentagon official referring to the drag show at Nellis said Milley was visibly angry about the decision to host the event on base after being informed about it earlier this week.

The drag show was scheduled for Thursday, but Maj. Gen. Case A. Cunningham, the commander of the U.S. Air Force Warfare Center at Nellis was informed in the past few days that it must either be canceled or moved off base. 

On May 23, Gaetz sent a letter to Austin and Milley, alleging that the “pervasive and persistent use of taxpayer dollars for drag events,” had a June 1 Nellis Air Force Base, Nev., event scheduled.

Gaetz went on to write that “Nellis Air Force Base has announced a so-called ‘family-friendly’ drag organized by the Nellis LGBTQ+ Pride Council for June 1, 2023. In this latest outright attack on children, this event is being advertised as having no minimum age requirement.” 

In his letter Gaetz also demanded to know: 

  • Does the DoD feel it’s appropriate for children to attend a sexualized drag performance?
  • Why are base commanders defying your intent and direction by facilitating drag events?
  • If this event goes forward, whether on June 1 or a later scheduled date, please provide an explanation regarding your justification for why you allowed the event to take place.

According to a spokesperson for the U.S. Air Force Warfare Center, Nellis, in June 2021 the base had hosted a Pride month drag show titled “Drag-u-Nellis.” The spokesperson noted the 2021 show was intended to promote inclusivity and diversity. 

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Alabama

Ala. extends ban on transgender female athletes to universities

Republican Gov. Kay Ivey signed bill on Tuesday

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Alabama Capitol (Washington Blade photo by Michael Key)

Governor Kay Ivey on Tuesday signed House Bill 261, which limits transgender students to playing sports in public colleges and universities only with “their biological sex assigned at birth.”

“Look, if you are a biological male, you are not going to be competing in women’s and girls’ sports in Alabama. It’s about fairness, plain and simple,”  said Ivey in a statement released by her office.

House Bill 261 was approved 26-4 in the Alabama Senate and 83-5 in the House of Representatives. In the vote in the House more than a dozen lawmakers abstained from the vote.

Ivey had previously signed legislation in 2021 banning trans female athletes from competing in K-12 girls sports. At the time she signed that bill the governor had noted that “Alabama remains committed to protecting female athletes at all levels and upholding the integrity of athletics.”

Carmarion D. Anderson-Harvey, Alabama state director of the Human Rights Campaign, said the legislation is part of a “systematic attack against LGBTQ+ people” in Alabama and elsewhere.

“In just two years, [Ivey] and extremist lawmakers in Alabama have passed four anti-LGBTQ+ bills. From dictating what bathrooms we can use to blatantly ignoring the actual problems in women’s sports, these politicians are making Alabama an increasingly hostile place for transgender people and the LGBTQ+ community as a whole,” Anderson-Harvey said.

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