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Picking up the pieces after ‘Don’t Ask’ defeat

Repeal supporters pin hopes on lame duck session after election

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Supporters of “Don’t Ask, Don’t Tell” repeal are picking up the pieces after a devastating loss in the U.S. Senate and — amid fears the opportunity for repeal has been lost — anticipating another shot at passing legislation that would end the law after Election Day.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said he continues to see a path for legislative repeal of “Don’t Ask, Don’t Tell” this Congress as he acknowledged the need for new efforts.

“We do have a shot in the lame duck,” he said. “And, I think, frankly, it’s better than 50/50, but we’ve got to change the mix. … It’s unlikely the vote will be that different.”

Still, Sarvis said “time is the enemy” even as he maintained that sufficient time remains this year to move forward with “Don’t Ask, Don’t Tell” repeal.

“We’re only talking about four or five days in November, and it’s unclear how many days in December,” Sarvis said. “This bill is tough to do in the best of circumstances when you aren’t up against time. I think it can be done, but time is a factor for sure.”

Alex Nicholson, executive director of Servicemembers United, said the legislative route to repeal will be a “challenge” and “those who let this vote fail yesterday really made it difficult for us all moving forward.”

“But we have no choice but to give it our all and try our best to push it through,” Nicholson said.

Jim Manley, a spokesperson for Sen. Harry Reid (D-Nev.), confirmed the majority leader’s plans to move forward with the defense authorization bill later this year.

“Sen. Reid reserved the right to reconsider the vote and that is what we intend to do at some point in the future,” Manley said.

Even before the vote, speculation and promises that Senate leaders would try again to start work on the defense authorization had emerged.

Sen. Joseph Lieberman (I-Conn.), the sponsor of Senate standalone repeal legislation, said Tuesday during a news conference he’s received assurances from Senate Majority Leader Harry Reid (D-Nev.) that the bill would come up again in the lame duck session after Election Day.

“If for some reason, we don’t get the 60 votes to proceed, this ain’t over,” Lieberman said. “We’re going to come back into session in November or December. I spoke to Sen. Reid [Tuesday]. He’s very clear and strong that he’s going to bring this bill to the floor in November or December.”

Senate Armed Services Committee Chairman Carl Levin (D-Mich.) said during a later news conference that he hopes the prospects for passing the defense authorization bill would be different after Election Day, but couldn’t offer more details.

“But as chairman of the committee, I’m going to do everything I can to get this bill before the Senate so that it’s subject to debate and amendment,” Levin said. “But I can’t discern what that path is at the moment. It’s too soon after the filibuster damage has been done.”

At least one political analyst is skeptical about the passage of “Don’t Ask, Don’t Tell” repeal in Congress this year.

Larry Sabato, a political scientist at the University of Virginia, expressed doubt about passage after Election Day — even as he acknowledged that “a lame duck session can be unpredictable.”

“From the perspective of September, the odds seem clearly against passage this year,” Sabato said. “Repeal of [‘Don’t Ask, Don’t Tell’] would have to be fast-tracked, and that requires broad agreement in the Senate. That’s unlikely.”

On Tuesday, the U.S. Senate failed to invoke cloture to bring to the floor the fiscal year 2011 defense authorization bill — legislation to which “Don’t Ask, Don’t Tell” repeal language is attached.

The vote in the Senate was 56-43, which was shy of the 60 votes necessary to end the filibuster from Sen. John McCain (R-Ariz.).

A unified GOP caucus — in addition to Democratic Arkansas Sens. Mark Pryor and Blanche Lincoln — comprised the “no” votes that defeated a cloture vote. Sen. Lisa Murkowski (R-Alaska) was the only senator who didn’t vote.

Reid changed his vote to “no” on the legislation in a procedural move that would enable him to bring the legislation to the floor again.

Sarvis said the failure of the Senate to invoke cloture on the defense authorization bill is “shameful” because it means the continued discharge of gay, lesbian and bisexual service members.

“That vote means that gay and lesbian service members are going to continue to be discharged every day while Republicans and Democrats in the Senate figure out how to move forward,” Sarvis said.

Sarvis said the LGBT community needs to “express more outrage” over the vote to convince Senate leaders to schedule the vote again and for successful passage.

“If we aren’t offended, if we aren’t outraged by this vote, I’m not sure how the political dynamics change,” Sarvis said. “Yes, things will be somewhat better after the mid-term elections are behind us, but the few determined opponents are still going to be there.”

Various explanations have been offered for the loss on Tuesday, although partisan politics are widely seen as the reason for failure.

Some faulted the GOP caucus for being obstinate in its vote against cloture even though many Republican senators previously expressed support for the defense authorization bill as a whole.

In a news conference following the vote, Levin called the unified GOP obstruction of the defense authorization bill “outrageous and sad.”

Levin accused the GOP of initially opposing the move forward with the defense authorization bill because of the language that would lead to an end to “Don’t Ask, Don’t Tell.”

“For two days, we’ve heard here that they objected to our proceeding because of the language in the bill relative to ‘Don’t Ask, Don’t Tell,’ even though that language is very moderate language,” Levin said.

The senator noted that the provision provides that repeal would only take effect after the Pentagon working group completes its study on the issue and the president, defense secretary and chair of the Joint Chiefs of Staff certify the U.S. military is ready for repeal.

Levin added he couldn’t recall a previous time in which the U.S. Senate couldn’t proceed to debate on defense authorization legislation.

“It’s important to know that we were just simply trying to get to the point where we could debate a bill,” he said. “I don’t think a filibuster has ever before prevented the Senate from getting to a defense authorization bill.”

GOP senators — including Sen. Susan Collins (R-Maine), who supported the repeal amendment to the defense authorization bill in committee — accused Democratic leadership on the Senate floor Tuesday of being intransigent by limiting the number of amendments that could come to the floor.

“That is why I am so disappointed that rather than allowing full and open debate and the opportunity for amendments from both sides of the aisle, the majority leader apparently intends to shut down the debate and exclude Republicans from offering a number of amendments,” Collins said.

Sarvis said a number of factors played into the unsuccessful cloture vote on Tuesday, including the pressure that repeal advocates placed on Reid to schedule the vote regardless of whether 60 votes were present to move forward.

“Those who were advocating a vote this Congress always understood that we would need 60 votes to succeed,” Sarvis said. “So the reality is, the majority leader scheduled the vote, but we came up short. We lost Democrats that we thought would be with us up until a few days ago and we lost some Republicans until late last week that we thought would be with us.”

Sarvis said Levin and McCain may have to reach some agreement on the number of amendments that can be offered to move forward.

“It doesn’t look good for Democrats or for Republicans — and especially this Congress — to be the first Congress in almost 50 years not to approve an authorization for the funding of our troops, especially when we are in war,” Sarvis said.

Supporters of “Don’t Ask, Don’t Tell” repeal have also cited insufficient support from the White House as a reason why the cloture vote was defeated.

Sarvis said President Obama didn’t make an effort to encourage senators to vote for cloture in the days prior to Tuesday.

“I did not see the White House whipping the vote for 72 hours before,” Sarvis said.

Nicholson ascribed blame to Obama as well as Reid and other LGBT organizations.

“The White House didn’t lift a finger to help and certain gay rights organizations refused to criticize Senator Reid while he derailed the vote in advance,” he said. “It’s just not a good position to be in with all of the hurdles and challenges of a highly polarized lame duck session ahead.”

During a Tuesday news conference, White House Press Secretary Robert Gibbs denied Lady Gaga had done more to advance the bill than President Obama. The pop singer appeared at a rally in Maine to promote passage of “Don’t Ask, Don’t Tell” repeal legislation and tweeted with senators to encourage them to move forward.

“We wouldn’t be taking on these issues if it weren’t for the president,” Gibbs said. “This is an issue that passed the House because of the president and this administration’s work and the work of many members in Congress.”

Gibbs also ascribed blame to the 60-vote threshold needed to move forward with legislation in the Senate — even for a bill to authorize funds for the Pentagon — and said “it’s certainly not healthy for the way our government works and it sets an awful precedent for getting things done in the future.”

Sarvis said support from the White House during the lame duck session would be crucial to advancing “Don’t Ask, Don’t Tell” repeal.

“We need the president speaking on this issue in the lame duck asking senators to be with him,” Sarvis said. “We know he favors repeal, but now we need him engaged more than ever.”

In the wake of Senate defeat, repeal advocates are seeking other options to move forward on “Don’t Ask, Don’t Tell.”

Litigation seeking to overturn the law has received renewed attention. Both Log Cabin v. United States and Witt v. Air Force are moving through the courts and could lead to an end to “Don’t Ask, Don’t Tell,” although legal experts expect those cases won’t be resolved for years.

In a statement following the Senate vote, Joe Solmonese, president of the Human Rights Campaign, urged the Obama administration not to appeal a recent California federal court’s decision against “Don’t Ask, Don’t Tell” in the case of Log Cabin v. United States.

“We expect the Justice Department to recognize the overwhelming evidence that proves [‘Don’t Ask, Don’t Tell’] is unconstitutional,” Solmonese said.

Even with litigation proceeding, Sarvis maintained that the legislative route is the best path for moving forward with repeal.

“The ball game is still in the Senate,” he said. “Yes, there’s some good things going on in the courts with Maj. Witt and the Log Cabin Republican case, but in all likelihood, those are going to be tied up for years.”

One question about a possible future vote on the defense authorization bill is what impact the Pentagon working group’s study on “Don’t Ask, Don’t Tell” due Dec. 1 would have on the legislation.

Sarvis dismissed the notion that the report represents a complication because he said he thinks the report would favor “Don’t Ask, Don’t Tell” repeal.

“They were asked to provide the [defense] secretary with a set of recommendations on how to implement open service,” Sarvis said. “Well, that is not going to be hurtful. Indeed, I’m not that concerned about the results of the survey.”

Nicholson said the completion of the Pentagon report should make voting for “Don’t Ask, Don’t Tell” easier for many senators, but said its release will be “thrown into the highly charged and high politicized environment of the lame duck session.”

“Unfortunately, the working group itself has become so politicized that its utility in this whole processed has been diminished because of that as well,” Nicholson said. “Bottom line — the administration really screwed this one up.”

Many senators, including McCain, have said they want to see the report before acting on “Don’t Ask, Don’t Tell.”

Sarvis predicted continued equivocation from these senators upon the completion of the report and congressional hearings may be necessary following the completion of the study to address concerns.

“Sen. McCain says, ‘Oh, I’m going to need some time to study that report and analyze how they came up with those recommendations,’” Sarvis said. “‘We may need some hearings on that.’ So that’s going to remain a moving target.”

Another possible complication in the legislative effort to repeal “Don’t Ask, Don’t Tell” later this year is state election laws.

According to Bloomberg News, state laws in Illinois, Delaware and West Virginia terminate the terms of appointed senators immediately after Election Day. Their elected successors may start in the lame duck session this year as opposed to the start of the next Congress.

These laws mean Sens. Ted Kaufman (D-Del.), Carte Goodwin (D-W.Va.) and Roland Burris (D-Ill.) — who voted in favor of cloture on Tuesday — may have to give up their seats to “Don’t Ask, Don’t Tell” repeal opponents in the lame duck session.

Sarvis acknowledged that a worst-case scenario of the loss of all three seats would complicate efforts to move forward with the defense authorization if the Senate faces another filibuster.

“If we’re facing another filibuster, I think it’s very, very challenging if we lose those three seats,” Sarvis said.

Sarvis said he’s spoken with Chris Coons, the Democratic nominee for U.S. Senate in Delaware, about “Don’t Ask, Don’t Tell” repeal.

“He looked me in the eye and told me that if he’s in the U.S. Senate, he will be voting for repeal,” Sarvis said. “So, I take heart from that commitment.”

Sarvis said he has “no idea” how Republican candidate Christine O’Donnell would vote should she win in the November election. O’Donnell is known for her opposition to gays and has spoken out against homosexuality.

Illustration courtesy of Georgia Voice

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Federal Government

Two very different views of the State of the Union

As Trump delivered his SOTU address inside the Capitol, Democratic lawmakers gathered outside in protest, condemning the administration’s harmful policies.

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President Donald Trump speaks at the State of the Union address at the U.S. Capitol on Feb. 24. (Washington Blade photo by Michael Key)

As President Donald Trump delivered his State of the Union address inside the U.S. Capitol — touting his achievements and targeting political enemies — progressive members of Congress gathered just outside in protest.

Their message was blunt: For many Americans, particularly LGBTQ people, the country is not better off.

Each year, as required by Article II, Section 3 of the Constitution, the president must “give to the Congress Information of the State of the Union.” The annual address is meant to outline accomplishments and preview the year ahead. This year, Trump delivered the longest State of the Union in U.S. history, clocking in at one hour and 48 minutes. He spoke about immigration, his “law and order” domestic agenda, his “peace through strength” foreign policy doctrine, and what he framed as the left’s ‘culture wars’ — especially those involving transgender youth and Christian values.

But one year into what he has called the “Trump 2.0” era, the picture painted outside the Capitol stood in stark contrast to the one described inside.

Transgender youth

In one of the most pointed moments of his speech, Trump spotlighted Sage Blair, using her story to portray gender-affirming care as coercive and dangerous. Framing the issue as one of parental rights and government overreach, he told lawmakers and viewers:

“In the gallery tonight are Sage Blair and her mother, Michelle. In 2021, Sage was 14 when school officials in Virginia sought to socially transition her to a new gender, treating her as a boy and hiding it from her parents. Hard to believe, isn’t it? Before long, a confused Sage ran away from home.

“After she was found in a horrific situation in Maryland, a left-wing judge refused to return Sage to her parents because they did not immediately state that their daughter was their son. Sage was thrown into an all-boys state home and suffered terribly for a long time. But today, all of that is behind them because Sage is a proud and wonderful young woman with a full ride scholarship to Liberty University.

“Sage and Michelle, please stand up. And thank you for your great bravery and who can believe that we’re even speaking about things like this. Fifteen years ago, if somebody was up here and said that, they’d say, what’s wrong with him? But now we have to say it because it’s going on all over, numerous states, without even telling the parents.

“But surely, we can all agree no state can be allowed to rip children from their parents’ arms and transition them to a new gender against the parents’ will. Who would believe that we’ve been talking about that? We must ban it and we must ban it immediately. Look, nobody stands up. These people are crazy. I’m telling you, they’re crazy.”

The story, presented as encapsulation of a national crisis, became the foundation for Trump’s renewed call to ban gender-affirming care. LGBTQ advocates — and those familiar with Blair’s story — argue that the situation was far more complex than described and that using a single anecdote to justify sweeping federal restrictions places transgender people, particularly youth, at greater risk.

Equality Virginia said the president’s remarks were part of a broader effort to strip transgender Americans of access to care. In a statement to the Blade, the group said:

“Tonight, the president is choosing to double down on efforts to disrupt access to evidence-based, lifesaving care.

“Rather than allowing families and doctors to navigate deeply personal medical decisions free from federal interference — or allowing schools to respond with nuance and compassion without putting marginalized children at risk — the president is instead advocating for reckless, one-size-fits-all political control.

“At a time when Virginians are worried about rising costs, economic uncertainty, and aggressive immigration enforcement actions disrupting communities and families, attacking transgender young people is a blatant political distraction from the real challenges facing our nation. Virginia families and health care providers do not need Donald Trump telling them what care they do or do not need.”

For many in the LGBTQ community, the rhetoric inside the chamber echoed actions already taken by the administration.

Earlier this month, the Pride flag was removed from the Stonewall National Monument under a National Park Service directive that came from the top. Community members returned to the site, raised the flag again, and filed suit, arguing the removal violated federal law. To advocates, the move was symbolic — a signal that even the legacy of LGBTQ resistance was not immune.

Immigration and fear

Immigration dominated both events as well.

Inside the chamber, Trump boasted about the hundreds of thousands of immigrants detained in makeshift facilities. Outside, Democratic lawmakers described those same facilities as concentration camps and detailed what they characterized as the human toll of the administration’s enforcement policies.

Sen. Ed Markey (D-Mass.), speaking to the crowd, painted a grim picture of communities living in fear:

“People are vanishing into thin air. Quiet mornings are punctuated by jarring violence. Students are assaulted by ICE agents sitting outside the high school, hard working residents are torn from their vehicles in front of their children. Families, hopelessly search for signs of their loved ones who have stopped answering their phones, stop replying to text… This is un-American, it is illegal, it is unconstitutional, and the people are going to rise up and fight for Gladys Vega and all of those poor people who today need to know that the people’s State of the Union is the beginning of a long fight that is going to result in the end of Republican control of the House of Representatives and the Senate in the United States of America in 2026.”

Speakers emphasized that LGBTQ immigrants are often especially vulnerable — fleeing persecution abroad only to face detention and uncertainty in the United States. For them, the immigration crackdown and the attacks on transgender health care are not separate battles but intertwined fronts in a broader cultural and political war.

Queer leadership

Rep. Robert Garcia (D-Calif.) speaks at the People’s State of the Union on the Mall on Feb. 24. (Photo by Andrei Nasonov)

After delivering remarks alongside Robert Garcia, Kelley Robinson, president of the Human Rights Campaign, took the stage and transformed the freezing crowd’s anger into resolve.

Garcia later told the Blade that visibility matters in moments like this — especially when LGBTQ rights are under direct attack.

“We should be crystal clear about right now what is happening in our country,” Garcia said. “We have a president who is leading the single largest government cover up in modern history, we have the single largest sex trafficking ring in modern history right now being covered up by Donald Trump and Pam Bondi In the Department of Justice. Why are we protecting powerful, wealthy men who have abused and raped women and children in this country? Why is our government protecting these men at this very moment? In my place at the Capitol is a woman named Annie farmer. Annie and her sister Maria, both endured horrific abuse by Jeffrey Epstein and Ghislaine Maxwell. As we move forward in this investigation, always center the survivors; we are going to get justice for the survivors. And Donald Trump may call this investigation a hoax. He may try to deflect our work, but our message to him is very clear that our investigation is just getting started, and we will we will get justice for these survivors.”

He told the Blade afterwards that having queer leaders front and center is itself an act of resistance.

“I obviously was very honored to speak with Kelley,” the California representative said. Kelley is doing a great job…it’s important that there are queer voices, trans voices, gay voices, in protest, and I think she’s a great example of that. It’s important to remind the country that the rights of our community continue to be attacked, and then we’ve got to stand up. Got to stand up for this as well.”

Robinson echoed that call, urging LGBTQ Americans — especially young people — not to lose hope despite the administration’s escalating rhetoric.

“There are hundreds of thousands of people that are standing up for you every single day that will not relent and will not give an inch until every member of our community is protected, especially our kids, especially our trans and queer kids. I just hope that the power of millions of voices drowns out that one loud one, because that’s really what I want folks to see at HRC. We’ve got 3.6 million members that are mobilizing to support our community every single day, 75 million equality voters, people that decide who they’re going to vote for based on issues related to our community. Our job is to make sure that all those people stand up so that those kids can see us and hear our voices, because we’re going to be what stands in the way.”

A boycott — and a warning

The list of Democratic lawmakers who boycotted the State of the Union included Sens. Ruben Gallego, Ed Markey, Jeff Merkley, Chris Murphy, Adam Schiff, Tina Smith, and Chris Van Hollen, along with dozens of House members.

For those gathered outside — and for viewers watching the livestream hosted by MoveOn — the counter-programming was not merely symbolic. It was a warning.

While the president spoke of strength and success inside the chamber, LGBTQ Americans — particularly transgender youth — were once again cast as political targets. And outside the Capitol, lawmakers and advocates made clear that the fight over their rights is far from over.

(Washington Blade photo by Michael Key)
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U.S. Military/Pentagon

4th Circuit rules against discharged service members with HIV

Judges overturned lower court ruling

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The Pentagon (Photo by icholakov/Bigstock)

A federal appeals court on Wednesday reversed a lower court ruling that struck down the Pentagon’s ban on people with HIV enlisting in the military.

The conservative three-judge panel on the 4th U.S. Circuit Court of Appeals overturned a 2024 ruling that had declared the Defense Department and Army policies barring all people living with HIV from military service unconstitutional.

The 4th Circuit, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia, held that the military has a “rational basis” for maintaining medical standards that categorically exclude people living with HIV from enlisting, even those with undetectable viral loads — meaning their viral levels are so low that they cannot transmit the virus and can perform all duties without health limitations.

This decision could have implications for other federal circuits dealing with HIV discrimination cases, as well as for nationwide military policy.

The case, Wilkins v. Hegseth, was filed in November 2022 by Lambda Legal and other HIV advocacy groups on behalf of three individual plaintiffs who could not enlist or re-enlist based on their HIV status, as well as the organizational plaintiff Minority Veterans of America.

The plaintiffs include a transgender woman who was honorably discharged from the Army for being HIV-positive, a gay man who was in the Georgia National Guard but cannot join the Army, and a cisgender woman who cannot enlist in the Army because she has HIV, along with the advocacy organization Minority Veterans of America.

Isaiah Wilkins, the gay man, was separated from the Army Reserves and disenrolled from the U.S. Military Academy Preparatory School after testing positive for HIV. His legal counsel argued that the military’s policy violates his equal protection rights under the Fifth Amendment’s Due Process Clause.

In August 2024, a U.S. District Court sided with Wilkins, forcing the military to remove the policy barring all people living with HIV from joining the U.S. Armed Services. The court cited that this policy — and ones like it that discriminate based on HIV status — are “irrational, arbitrary, and capricious” and “contribute to the ongoing stigma surrounding HIV-positive individuals while actively hampering the military’s own recruitment goals.”

The Pentagon appealed the decision, seeking to reinstate the ban, and succeeded with Wednesday’s court ruling.

Judge Paul V. Niemeyer, one of the three-judge panel nominated to the 4th Circuit by President George H. W. Bush, wrote in his judicial opinion that the military is “a specialized society separate from civilian society,” and that the military’s “professional judgments in this case [are] reasonably related to its military mission,” and thus “we conclude that the plaintiffs’ claims fail as a matter of law.”

“We are deeply disappointed that the 4th Circuit has chosen to uphold discrimination over medical reality,” said Gregory Nevins, senior counsel and employment fairness project director for Lambda Legal. “Modern science has unequivocally shown that HIV is a chronic, treatable condition. People with undetectable viral loads can deploy anywhere, perform all duties without limitation, and pose no transmission risk to others. This ruling ignores decades of medical advancement and the proven ability of people living with HIV to serve with distinction.”

“As both the 4th Circuit and the district court previously held, deference to the military does not extend to irrational decision-making,” said Scott Schoettes, who argued the case on appeal. “Today, servicemembers living with HIV are performing all kinds of roles in the military and are fully deployable into combat. Denying others the opportunity to join their ranks is just as irrational as the military’s former policy.”

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New York

Lawsuit to restore Stonewall Pride flag filed

Lambda Legal, Washington Litigation Group brought case in federal court

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The Pride flag in question that once flew at the Stonewall National Monument. (Photo from National Park Service)

Lambda Legal and Washington Litigation Group filed a lawsuit on Tuesday, challenging the Trump-Vance administration’s removal of the Pride flag from the Stonewall National Monument in New York earlier this month.

The suit, filed in the U.S. District Court for the Southern District of New York, asks the court to rule the removal of the Pride flag at the Stonewall National Monument is unconstitutional under the Administrative Procedures Act — and demands it be restored.

The National Park Service issued a memorandum on Jan. 21 restricting the flags that are allowed to fly at National Parks. The directive was signed by Trump-appointed National Park Service Acting Director Jessica Bowron.

“Current Department of the Interior policy provides that the National Park Service may only fly the U.S. flag, Department of the Interior flags, and the Prisoner of War/Missing in Action flag on flagpoles and public display points,” the letter from the National Park Service reads. “The policy allows limited exceptions, permitting non-agency flags when they serve an official purpose.”

That “official purpose” is the grounds on which Lambda Legal and the Washington Litigation Group are hoping a judge will agree with them — that the Pride flag at the Stonewall National Monument, the birthplace of LGBTQ rights movement in the U.S., is justified to fly there.

The plaintiffs include the Gilbert Baker Foundation, Charles Beal, Village Preservation, and Equality New York.

The defendants include Interior Secretary Doug Burgum; Bowron; and Amy Sebring, the Superintendent of Manhattan Sites for the National Park Service.

“The government’s decision is deeply disturbing and is just the latest example of the Trump administration targeting the LGBTQ+ community. The Park Service’s policies permit flying flags that provide historical context at monuments,” said Alexander Kristofcak, a lawyer with the Washington Litigation Group, which is lead counsel for plaintiffs. “That is precisely what the Pride flag does. It provides important context for a monument that honors a watershed moment in LGBTQ+ history. At best, the government misread its regulations. At worst, the government singled out the LGBTQ+ community. Either way, its actions are unlawful.”

“Stonewall is the birthplace of the modern LGBTQ+ rights movement,” said Beal, the president of the Gilbert Baker Foundation. The foundation’s mission is to protect and extend the legacy of Gilbert Baker, the creator of the Pride flag.

“The Pride flag is recognized globally as a symbol of hope and liberation for the LGBTQ+ community, whose efforts and resistance define this monument. Removing it would, in fact, erase its history and the voices Stonewall honors,” Beal added.

The APA was first enacted in 1946 following President Franklin D. Roosevelt’s creation of multiple new government agencies under the New Deal. As these agencies began to find their footing, Congress grew increasingly worried that the expanding powers these autonomous federal agencies possessed might grow too large without regulation.

The 79th Congress passed legislation to minimize the scope of these new agencies — and to give them guardrails for their work. In the APA, there are four outlined goals: 1) to require agencies to keep the public informed of their organization, procedures, and rules; 2) to provide for public participation in the rule-making process, for instance through public commenting; 3) to establish uniform standards for the conduct of formal rule-making and adjudication; and 4) to define the scope of judicial review.

In layman’s terms, the APA was designed “to avoid dictatorship and central planning,” as George Shepherd wrote in the Northwestern Law Review in 1996, explaining its function.

Lambda Legal and the Washington Litigation Group are arguing that not only is the flag justified to fly at the Stonewall National Monument, making the directive obsolete, but also that the National Park Service violated the APA by bypassing the second element outlined in the law.

“The Pride flag at the Stonewall National Monument honors the history of the fight for LGBTQ+ liberation. It is an integral part of the story this site was created to tell,” said Lambda Legal Chief Legal Advocacy Officer Douglas F. Curtis in a statement. “Its removal continues the Trump administration’s disregard for what the law actually requires in their endless campaign to target our community for erasure and we will not let it stand.”

The Washington Blade reached out to the NPS for comment, and received no response.

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