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No clear signal from court in arguments over Trump’s trans military ban

Three-judge panel debates whether to keep injunction against policy

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The D.C. Circuit Court of Appeals held arguments on the transgender military ban. (Photo by AgnosticPreachersKid via Wikimedia Commons)

A three-judge panel on the D.C. Circuit Court of Appeals gave no clear signal during oral arguments Monday on whether they’d keep in place one of four injunctions against President Trump’s transgender military ban, raising the real possibility the panel would reverse the order against the policy.

After one hour of arguments in which a dominant theme was hair-splitting over the difference between being transgender and having gender dysphoria, the questioning left no clear indication of the eventual ruling. One judge seemed poised to reverse the injunction, another seemed inclined to keep it and the other gave mixed signals.

At issue is whether U.S. District Judge Colleen Kollar-Kotelly should have lifted her preliminary injunction against Trump’s transgender military ban in the aftermath of the report of Defense Secretary James Mattis in March justifying Trump’s plan to exclude transgender people. Although the Mattis policy generally bars transgender people from service, it exempts those who’ve already come out during the period of open service that started under Defense Secretary Ashton Carter during the Obama years. The Mattis policy also allows transgender troops who enlist in the future or who have yet to come out to continue to serve as long as they don’t transition.

U.S. Circuit Judge Stephen Williams, a Reagan appointee, raised questions that were overtly in favor of allowing the ban to proceed. U.S. Circuit Judge Thomas Griffith, a George W. Bush appointee, had mixed questioning for both sides. U.S. Circuit Judge Robert Wilkins, an Obama appointee, seemed inclined to keep the injunction in place, asking questions about whether the Mattis policy has changed anything.

Even if the D.C. Circuit were to reverse Colleen Kollar-Kotelly’s injunction against the Trump policy, three other nationwide injunctions against the policy remain in effect and those court orders against the policy would remain in effect. The Trump administration would still be enjoined from implementing its ban on transgender service.

Much attention was placed on the distinction Mattis placed in his implementation on service members who are transgender and transition and those who continue serving in their biological sex. The Mattis policy would allow transgender people to serve as long as they serve in their biological sex and “do not require a change of gender and remain deployable within applicable retention standards.”

Representing the Trump administration before the court was Justice Department trial attorney Brinton Lucas, who argued that provision in the policy — as well as the part allowing the estimated 937 transgender troops who came out in the Obama years to stay in the military — demonstrates the Trump administration has changed its approach and lifting the injunction is warranted.

“Their entire argument is we haven’t changed,” Lucas said. “We believe that we have.”

In his closing remarks, Lucas called it “truly extraordinary” four separate courts have placed injunctions against the transgender military ban and said the U.S. government is calling for a “simple amount of deference,” much like the U.S. Supreme Court ultimately awarded the Trump administration on the travel ban to Muslim countries.

Arguing on behalf of the National Center for Lesbian Rights and GLBTQ Advocates & Defenders in favor of keeping the court injunction in place was Jennifer Levi, who said the Mattis policy “bans only transgender people and all transgender people” and gender dysphoria is a “defining characteristic” of being transgender.

Williams — who told Levi “the record in the case is against you” — repeatedly referenced the portion of the Mattis recommendations allowing transgender people to serve in their biological sex, pointing to a RAND Corp. study finding 18 percent of transgender service members reported having no desire to undertake transition.

“There seem to be people who spend decades in their biological sex and then decide to transition,” Williams said.

When Levi responded those service members don’t wish to transition “because of discrimination,” Williams said the terms “do not wish” demonstrates a subsection of transgender people who are fine for the time being in their biological sex. Levi, however, said the distinction “doesn’t remedy the constitutional injury” against transgender and warrant lifting the injunction against the policy.

“Gender dysphoria here is being used as a proxy to exclude transgender individuals,” Levi said.

When Williams suggested the transgender ban could be justified because of the high suicide rates in the transgender population, Levi said the military doesn’t apply the standards, for example, to white people compared to black people, drawing on findings white people suffer a higher suicide rate than black individuals.

A couple of times issues became contentious between Williams and Levi. When the judge asked the attorney to comment on the transgender experience in terms of the “world” as opposed to proposed policy, Levi commented on the “Carter world” of open service, Williams scoffed and said that wasn’t sufficient.

“The government is playing word games by arguing that transgender people can serve in their birth sex. That is a contradiction in terms,” Levi said in a statement after the arguments. “This is not a game. What’s at stake here is the lives of dedicated service members, who are willing and able to serve—and are prepared to make the ultimate sacrifice for their country.”

In contrast to Williams, Griffith repeatedly asked whether heightened scrutiny for laws against sex discrimination should apply to the transgender military ban, indicating he may be inclined to uphold the order against the policy.

Additionally, Griffith asked whether allowing transgender service members to stay in the military as long as they remain in their biological sex creates a “null set” that essentially bars all transgender service members.

“You can be a transgender individual as long as you don’t act like one, as long as you suppress your gender identity,” Griffith said.

When Griffith asked Lucas whether there are transgender people who can serve in their biological sex, Lucas replied, “Yes,” referencing those who don’t wish to transition because, for example, they identify as non-binary. But when Griffith posed the same question to Levi, she compared the situation to allowing gays to serve in the military while requiring them “to act heterosexually.”

Griffith also asked Lucas whether the grandfather clause in the Mattis policy allowing transgender people who came out during the Obama years undercuts the rationale for the policy. In response, Lucas said the military has different standards for accession than it does for retention, noting the military keeps service members with PTSD, high blood pressure and sleep apnea, but doesn’t have the same policy for their enlistment.

Despite those questions, Griffith also voiced concerns over judicial precedent requiring the judiciary to give deference to the military over combat readiness, pointing out the proposed ban used to be the policy of the military until the final year of the Obama administration.

“You are asking the court to make decisions we are not equipped to make: Who is combat ready and who is not” Griffith said.

Levi responded the courts must still apply the “same level of scrutiny” they would otherwise apply to discriminatory policy.

“Under any level of scrutiny the Mattis plan fails because it’s rooted in discrimination,” Levi said.

Wilkins was the hardest judge to read on the panel, but seemed inclined to allow the injunction against the ban to remain in place. Wilkins asked for a distinction between the transgender polices as they evolved during the Obama and Trump eras, asking whether anything has really changed with the new policy Mattis proposed.

Arguments took place before the D.C. Circuit shortly after the Justice Department filed petitions with the U.S. Supreme Court calling for review before appellate courts made their decisions on the policy. It would be highly unusual for the Supreme Court to take up the case at this stage in the litigation process. On Friday, Kollar-Kotelly denied a request from the Justice Department to lift her injunction against the ban as the Supreme Court considers whether to take up the petitions.

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D.C. mayor to lift all restrictions on bars, nightclubs on June 11

‘We will definitely be celebrating Pride’ next month

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Mayor Muriel Bowser announced Monday that she will fully lift capacity and other restrictions on most businesses, including restaurants and places of worship, on May 21. (Washington Blade file photo by Michael Key)

D.C. Mayor Muriel Bowser announced at a news conference on Monday that a continuing trend of significantly lower numbers of coronavirus cases and deaths in the city has enabled her to fully lift capacity and other restrictions on most businesses, including restaurants and places of worship, on May 21.

The mayor said bars and nightclubs will be allowed to increase indoor capacity from the current 25 percent to 50 percent on May 21, with all capacity restrictions for bars and nightclubs to be removed on June 11.

The mayor’s announcement came after representatives of the city’s nightlife businesses, including the city’s gay bars and restaurants, expressed concern that D.C. had yet to lift its capacity restrictions beyond 25 percent while surrounding jurisdictions in Maryland and Virginia had already lifted most restrictions.

“On May 21, restrictions on public and commercial activity, including capacity limits, types of activities, and time restrictions, will be lifted,” the mayor’s directive says.

It says restrictions for bars and nightclubs would continue at a 50 percent capacity from May 21 through June 11. The directive says restrictions for large sports and entertainment venues would also continue from May 21 to June 11, which includes a requirement such events apply for a waiver of the restrictions on a case-by-case basis.

“On June 11, capacity limits and restrictions will be lifted on those venues that cannot fully reopen on May 21,” the directive says.

In response to a question at the news conference, Bowser said the June 11 date would essentially end all restrictions on nightclubs and bars, including the current requirement that they close at midnight rather than the pre-epidemic closing times of 2 a.m. on weekdays and 3 a.m. on weekends.

In a development that could have a major impact on plans for D.C.’s LGBTQ Pride events, the mayor’s revised health directive announced on Monday includes the lifting of all capacity restrictions on large outdoor and indoor sports and entertainment events beginning on June 11.

That change would remove restrictions that have, up until now, prevented D.C.’s Capital Pride Alliance from holding its annual Pride Parade and Festival in June during Pride Month.

Capital Pride Executive Director Ryan Bos told the Washington Blade shortly after the mayor’s announcement that Capital Pride is assessing its options for expanding its current plans for in-person events in June.

“We will definitely be celebrating Pride in June,” Bos said. “We just received this information as well. So, we will be getting further information,” he said. “We have not been informed that they will be issuing any permits yet, so at this time we are moving forward with our original plans for doing things.”

Bos was referring to a city requirement for obtaining permits for street closings and use of other public spaces for events such as a parade or street festival. He said existing plans, among other things, call for an informal parade of cars and other vehicles on June 12 that will drive throughout the city to view homes and businesses that will be decorated with Pride displays such as signs, photos, and other symbols of Pride.

Those familiar with the city’s past Pride events don’t think there will be enough time for Capital Pride to organize the traditional large parade and street festival in time for June. But Capital Pride officials have talked about holding a possible parade and festival in October, and the lifting of the capacity restrictions announced by Bowser on Monday would likely make that possible.

In addition to lifting all capacity restrictions on May 21 for restaurants, the mayor’s May 21 timeframe for lifting restrictions includes these additional venues and events:

  • Weddings and special events
  • Business meetings and seated conventions
  • Places of worship
  • Non-essential retail
  • Personal services
  • Private at-home gatherings
  • Libraries, museums, galleries
  • Recreation Centers
  • Gyms and fitness centers
  • Pools
  • Office space
  • Schools
  • Childcare

“We’re very pleased that over the last several days, we have seen our case spread, our community spread numbers, venture out of the red into the yellow and fast approaching the green,” Bowser said in referring to a health department chart that shows the changes in coronavirus cases in the city.

“You might remember that our daily case rate peaked in January at 45.9. And today you can see it’s down to 6.6,” she said at her news conference on Monday.

“Throughout this process I have said how proud I am of D.C. residents and businesses who have responded, who have followed health guidance and have worked together to help protect our community throughout the pandemic. And we see it in these numbers today,” she said.

“Containing the virus will continue to require all of us to be focused on maintaining a robust health system,” the mayor said, adding that while over 200,000 D.C. residents have been fully vaccinated since December 2020, “many more thousands” still need to be vaccinated. “Vaccines are free and available on demand at walk-up sites across the District,” she said.

The mayor also noted that the city will continue to require residents and visitors to use a mask in accordance with existing and updated guidance set by the U.S. Centers for Disease Control and Prevention.

Mark Lee, coordinator of the D.C. Nightlife Council, an association that represents restaurants, bars, nightclubs and other entertainment venues, said the mayor’s directive on May 10 leaves some details to be addressed but will open the way to bring nightlife businesses back to life.

“What we do know is that on Friday, May 21, businesses begin returning to normal operations and, three weeks later, on June 11, all restrictions for all businesses in the District will end,” Lee said. “It’s a day we’ve long awaited and one that will save much of our community enterprise from financial ruin.”

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Family code bill to be introduced in Cuban Parliament in July

CENESEX made announcement during May 4 press conference

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Mariela Castro at a CENESEX press conference

 

Tremenda Nota is the Washington Blade’s media partner in Cuba. A Spanish version of this story was published on May 6.

HAVANA — The National Center for Sexual Education on May 4 during a press conference in which it unveiled the program for the 14th annual International Day Against Homophobia, Transphobia and Biphobia events in Cuba announced a bill to amend the family code will be introduced in Parliament in July.

CENESEX Director Mariela Castro Espín said during a meeting with official and foreign media outlets at the International Press Center that this year’s events are part of the process of amending the family code.

She added that this legal change will reflect several rights guaranteed in the constitution, which is why it is necessary to sensitize and educate the Cuban population to avoid prejudice and discrimination.

“I was able to appreciate that the majority of the population … is in favor of recognizing the rights of LGBTI+ people and especially the rights in the family sphere that include the possibility, the option, of marriage,” said Mariela Castro during the press conference.

The official referred to the results of the National Survey on Gender Equality in Cuba, conducted in 2016 and published in 2019. According to this official study, 77 percent of the Cuban population between 15 and 74-years-old said that gays, lesbians, bisexuals and transgender people should have the same rights as any other citizen.

CENESEX’s director, however, did not use this information in the 2018 parliamentary debates sparked by Article 68 of the bill to amend the constitution. The idea that it was not the appropriate time to implement same-gender marriage in Cuba eventually won out.

Mariela Castro told Tremenda Nota a few days before the referendum in which Cuban voters approved the current constitution that she was aware of the survey, but she did not explain why she did not use the data it revealed as an argument (in favor of marriage equality.)

“It was a wasted tool that now we can only use in the next referendum,” then-MP Luis Ángel Adán Roble told Tremenda Nota during a February 2019 interview, as did Mariela Castro.

The moment that Adán Roble mentioned has arrived.

It became known during the May 4 press conference that the family code will be introduced in the scheduled parliamentary session in July. The Council of State on March 22 appointed a commission that will be in charge of preparing the bill, but the list of its members was not made public until April 30. None of them are openly LGBTI+.

Activists over the last few weeks have demanded that Parliament reveal the identities of those who make up the commission and the deadline they have to prevent the Family Code. The May 4 press conference resolved the last outstanding point.

The Cuban IDAHOBiT program

Mariela Castro and CENESEX Deputy Director Manuel Vázquez Seijido explained that numerous activities with the goal of making visible and fighting against all types of discrimination based on sexual orientation and gender identity will virtually take place from May 4 through May 30.

The IDAHOBiT events in Cuba have a program that includes academic dialogue, social activism and artistic presentations from virtual spaces.

Forum debates are among the activities. The Juventud Rebelde newspaper will host the first one with the theme “Deconstructing myths around same-sex families and partners” and Cubadebate will hold the second called “Constitution and Sexual Rights in Cuba: Progress and Main challenges.”

They also announced at the press conference the books “Paquito el de Cuba: A Decade of Online Activism” and “Non-Heteronormative Sexualities and Gender Identities. Tensions and Challenges for Human Rights” will be presented.

There will be virtual panels titled “Diverse Families: Histories of Non-Hegemonic Lives,” “National Program for the Advancement of Women: Opportunities to Confront Homophobia and Transphobia,” “Keys for Inclusive Communication” and “Sexual Rights and Religious Fundamentalisms.”

Castro Espín explained that CENESEX will use its social media accounts to promote the program, contribute to the sexual education of Cubans and the recognition of rights for all people, regardless of gender or sexual orientation.

A show against homophobia and transphobia that will officially end the events will be broadcast on social media and on television.

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Bill to ban conversion therapy dies in Puerto Rico Senate committee

Advocacy group describes lawmakers as cowards

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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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