National
Pelosi foresees ‘Don’t Ask’ end by year’s end
Speaker wants Obama to end policy administratively
House Speaker Nancy Pelosi spoke at the Gay & Lesbian Victory Fund Awards Gala (Blade photo by Michael Key)
U.S. House Speaker Nancy Pelosi (D-Calif.) on Wednesday reiterated her prediction that “Don’t Ask, Don’t Tell” would be a memory by the year’s end — despite the failure of the Senate last week to move forward with repeal legislation — as she maintained the president has the ability to stop troop discharges without a change in law.
Asked by a reporter whether she’s spoken with Senate Majority Leader Harry Reid (D-Nev.) about the Senate taking another shot at “Don’t Ask, Don’t Tell,” Pelosi replied, “That will be gone by executive — that will happen with or without Congress.”
“I don’t think it has to depend on whether it passes the Senate,” she continued. “The process will work its way through and the president will make his pronouncement.”
The speaker spoke to reporters after she gave a speech at the Gay & Lesbian Leadership Awards at the W Hotel, which was hosted by the Gay & Lesbian Victory Fund.
During her speech, Pelosi made similar assurances and promised that “Don’t Ask, Don’t Tell” will be “gone by the end of the year.”
“Some are here tonight who serve in the military,” she said. “God bless you for your courage and your patriotism. … But because of courage of some of them, this will be gone by the end of the year.”
Pelosi previously predicted in May that “Don’t Ask, Don’t Tell” would be “a memory” by the end of this year during an interview with the Hill newspaper.
Speaking to reporters, Pelosi said Congress got the ball rolling on repealing “Don’t Ask, Don’t Tell” to get lawmakers on record on the issue and so the change would be “in statute and all of that.”
The House in May passed an amendment that would repeal “Don’t Ask, Don’t Tell” as part of the fiscal year 2011 defense authorization bill.
“But even the bill that we passed said that it was contingent upon the recommendation of the president’s … review,” she said. “The only difference would be statute versus the president [making a policy change.]”
Pressed on whether she thinks the executive branch would ultimately be responsible for ending “Don’t Ask, Don’t Tell,” Pelosi replied, “That’s where it was anyway.”
“Others wanted to have more, so we tried to do more,” she said. “We’ll work very closely to try to see what happens after the election.”
Pelosi has previously said President Obama can issue an executive order to stop discharges under “Don’t Ask, Don’t Tell” without action from Congress.
Supporters of “Don’t Ask, Don’t Tell” repeal have been calling on Obama since the beginning of his administration to issue an order to stop the discharges under the law, but the president hasn’t taken such action.
Asked whether she would call on Obama to issue an order to end “Don’t Ask, Don’t Tell,” Pelosi replied, “That is the unfolding that we will see.”
“I’m very pleased with the course that the president’s on, but I think that they we shouldn’t be discharging people until that happens — so that, we have a little separation of — in terms of policy on that,” Pelosi said.
Pelosi added House members who support “Don’t Ask, Don’t Tell” repeal were “very disappointed” the Senate didn’t have sufficient votes to end a filibuster on moving forward with legislation that would end the law.
“In the Senate, the Republicans held up the bill entirely so it couldn’t even be considered, so it was very disappointing,” she said. “They went really out of their way to try to block this.”
Pelosi also reiterated her position that the Employment Non-Discrimination Act wouldn’t see a House vote until legislative action is complete on repealing the 1993 law barring open service in the U.S. military.
“I told everyone that right from the start — that if we want to go down the ‘Don’t Ask, Don’t Tell’ route, then we’d have to put ENDA in a different place,” she said.
Pelosi said initial plans for the 111th Congress were to take on hate crimes protections legislation followed by ENDA and then “Don’t Ask, Don’t Tell.” But she said the House ended up acting on “Don’t Ask, Don’t Tell” first before ENDA because there was “a lot of enthusiasm about changing the order.”
During her speech, Pelosi maintained the importance of the mid-term elections and said “the fabric of our middle class and strength of our democracy” is at stake.
Pelosi added that the election results will also “accelerate the pace of passing ENDA or set us back.”
The speaker said she believes the votes are in the U.S. House to pass ENDA, but expressed concern about a motion to recommit that could derail the bill.
The motion to recommit is a legislative manuever that opponents of ENDA could use to scuttle the bill when it comes to the House floor.
“I think we have the votes for it, but we have to resist the motion to recommit,” Pelosi said. “We can’t pass the bill unless we can resist all of the bad things that they could do to the bill along the way.”
Also speaking at the event were gay Reps. Barney Frank (D-Mass.) and Tammy Baldwin (D-Wis.).
During his speech, Frank emphasized the importance of keeping a Democratic majority in the next Congress and questioned those who would criticize lawmakers who support LGBT rights for the lack of progress on pro-LGBT bills.
“I understand people being unhappy about that,” he said. “What I do not understand is people who think that the way to respond to the fact that we weren’t able to get things done is further to empower the people who kept us from getting them done.”
Frank urged attendees to “bitch and fight” all the way to the polls to re-elect a Democratic majority in the U.S. House because Pelosi has been such a strong supporter of LGBT rights.
“Neither Tammy, nor I, nor anybody else has ever had to ask for her to support us,” Frank said. “We take that for granted and she has been the been the single most important public official in the history of the United States to be fully committed to our agenda not just as a matter of support, but as matter of her own personal involvement.”
National
United Methodist Church removes 40-year ban on gay clergy
Delegates also voted for other LGBTQ-inclusive measures
The United Methodist Church on Wednesday removed a ban on gay clergy that was in place for more than 40 years, voting to also allow LGBTQ weddings and end prohibitions on the use of United Methodist funds to “promote acceptance of homosexuality.”
Overturning the policy forbidding the church from ordaining “self-avowed practicing homosexuals” effectively formalized a practice that had caused an estimated quarter of U.S. congregations to leave the church.
The New York Times notes additional votes “affirming L.G.B.T.Q. inclusion in the church are expected before the meeting adjourns on Friday.” Wednesday’s measures were passed overwhelmingly and without debate. Delegates met in Charlotte, N.C.
According to the church’s General Council on Finance and Administration, there were 5,424,175 members in the U.S. in 2022 with an estimated global membership approaching 10 million.
The Times notes that other matters of business last week included a “regionalization” plan, which gave autonomy to different regions such that they can establish their own rules on matters including issues of sexuality — about which international factions are likelier to have more conservative views.
Rev. Kipp Nelson of St. Johns’s on the Lake Methodist Church in Miami shared a statement praising the new developments:
“It is a glorious day in the United Methodist Church. As a worldwide denomination, we have now publicly proclaimed the boundless love of God and finally slung open the doors of our church so that all people, no matter their identities or orientations, may pursue the calling of their hearts.
“Truly, all are loved and belong here among us. I am honored to serve as a pastor in the United Methodist Church for such a time as this, for our future is bright and filled with hope. Praise be, praise be.”
Federal Government
Republican state AGs challenge Biden administration’s revised Title IX policies
New rules protect LGBTQ students from discrimination
Four Republicans state attorneys general have sued the Biden-Harris administration over the U.S. Department of Education’s new Title IX policies that were finalized April 19 and carry anti-discrimination protections for LGBTQ students in public schools.
The lawsuit filed on Tuesday, which is led by the attorneys general of Kentucky and Tennessee, follows a pair of legal challenges from nine Republican states on Monday — all contesting the administration’s interpretation that sex-based discrimination under the statute also covers that which is based on the victim’s sexual orientation or gender identity.
The administration also rolled back Trump-era rules governing how schools must respond to allegations of sexual harassment and sexual assault, which were widely perceived as biased in favor of the interests of those who are accused.
“The U.S. Department of Education has no authority to let boys into girls’ locker rooms,” Tennessee Attorney General Jonathan Skrmetti said in a statement. “In the decades since its adoption, Title IX has been universally understood to protect the privacy and safety of women in private spaces like locker rooms and bathrooms.”
“Florida is suing the Biden administration over its unlawful Title IX changes,” Florida Gov. Ron DeSantis wrote on social media. “Biden is abusing his constitutional authority to push an ideological agenda that harms women and girls and conflicts with the truth.”
After announcing the finalization of the department’s new rules, Education Secretary Miguel Cardona told reporters, “These regulations make it crystal clear that everyone can access schools that are safe, welcoming and that respect their rights.”
The new rule does not provide guidance on whether schools must allow transgender students to play on sports teams corresponding with their gender identity to comply with Title IX, a question that is addressed in a separate rule proposed by the agency in April.
LGBTQ and civil rights advocacy groups praised the changes. Lambda Legal issued a statement arguing the new rule “protects LGBTQ+ students from discrimination and other abuse,” adding that it “appropriately underscores that Title IX’s civil rights protections clearly cover LGBTQ+ students, as well as survivors and pregnant and parenting students across race and gender identity.”
Federal Government
4th Circuit rules gender identity is a protected characteristic
Ruling a response to N.C., W.Va. legal challenges
BY ERIN REED | The 4th U.S. Circuit Court of Appeals ruled Monday that transgender people are a protected class and that Medicaid bans on trans care are unconstitutional.
Furthermore, the court ruled that discriminating based on a diagnosis of gender dysphoria is discrimination based on gender identity and sex. The ruling is in response to lower court challenges against state laws and policies in North Carolina and West Virginia that prevent trans people on state plans or Medicaid from obtaining coverage for gender-affirming care; those lower courts found such exclusions unconstitutional.
In issuing the final ruling, the 4th Circuit declared that trans exclusions were “obviously discriminatory” and were “in violation of the equal protection clause” of the Constitution, upholding lower court rulings that barred the discriminatory exclusions.
The 4th Circuit ruling focused on two cases in states within its jurisdiction: North Carolina and West Virginia. In North Carolina, trans state employees who rely on the State Health Plan were unable to use it to obtain gender-affirming care for gender dysphoria diagnoses.
In West Virginia, a similar exclusion applied to those on the state’s Medicaid plan for surgeries related to a diagnosis of gender dysphoria. Both exclusions were overturned by lower courts, and both states appealed to the 4th Circuit.
Attorneys for the states had argued that the policies were not discriminatory because the exclusions for gender affirming care “apply to everyone, not just transgender people.” The majority of the court, however, struck down such a claim, pointing to several other cases where such arguments break down, such as same-sex marriage bans “applying to straight, gay, lesbian, and bisexual people equally,” even though straight people would be entirely unaffected by such bans.
Other cases cited included literacy tests, a tax on wearing kippot for Jewish people, and interracial marriage in Loving v. Virginia.
See this portion of the court analysis here:
Of particular note in the majority opinion was a section on Geduldig v. Aiello that seemed laser-targeted toward an eventual U.S. Supreme Court decision on discriminatory policies targeting trans people. Geduldig v. Aiello, a 1974 ruling, determined that pregnancy discrimination is not inherently sex discrimination because it does not “classify on sex,” but rather, on pregnancy status.
Using similar arguments, the states claimed that gender affirming care exclusions did not classify or discriminate based on trans status or sex, but rather, on a diagnosis of gender dysphoria and treatments to alleviate that dysphoria.
The majority was unconvinced, ruling, “gender dysphoria is so intimately related to transgender status as to be virtually indistinguishable from it. The excluded treatments aim at addressing incongruity between sex assigned at birth and gender identity, the very heart of transgender status.” In doing so, the majority cited several cases, many from after Geduldig was decided.
Notably, Geduldig was cited in both the 6th and 11th Circuit decisions upholding gender affirming care bans in a handful of states.
The court also pointed to the potentially ridiculous conclusions that strict readings of what counts as proxy discrimination could lead to, such as if legislators attempted to use “XX chromosomes” and “XY chromosomes” to get around sex discrimination policies:
Importantly, the court also rebutted recent arguments that Bostock applies only to “limited Title VII claims involving employers who fired” LGBTQ employees, and not to Title IX, which the Affordable Care Act’s anti-discrimination mandate references. The majority stated that this is not the case, and that there is “nothing in Bostock to suggest the holding was that narrow.”
Ultimately, the court ruled that the exclusions on trans care violate the Equal Protection Clause of the Constitution. The court also ruled that the West Virginia Medicaid Program violates the Medicaid Act and the anti-discrimination provisions of the Affordable Care Act.
Additionally, the court upheld the dismissal of anti-trans expert testimony for lacking relevant expertise. West Virginia and North Carolina must end trans care exclusions in line with earlier district court decisions.
The decision will likely have nationwide impacts on court cases in other districts. The case had become a major battleground for trans rights, with dozens of states filing amicus briefs in favor or against the protection of the equal process rights of trans people. Twenty-one Republican states filed an amicus brief in favor of denying trans people anti-discrimination protections in healthcare, and 17 Democratic states joined an amicus brief in support of the healthcare rights of trans individuals.
Many Republican states are defending anti-trans laws that discriminate against trans people by banning or limiting gender-affirming care. These laws could come under threat if the legal rationale used in this decision is adopted by other circuits. In the 4th Circuit’s jurisdiction, West Virginia and North Carolina already have gender-affirming care bans for trans youth in place, and South Carolina may consider a similar bill this week.
The decision could potentially be used as precedent to challenge all of those laws in the near future and to deter South Carolina’s bill from passing into law.
The decision is the latest in a web of legal battles concerning trans people. Earlier this month, the 4th Circuit also reversed a sports ban in West Virginia, ruling that Title IX protects trans student athletes. However, the Supreme Court recently narrowed a victory for trans healthcare from the 9th U.S. Circuit Court of Appeals and allowed Idaho to continue enforcing its ban on gender-affirming care for everyone except the two plaintiffs in the case.
Importantly, that decision was not about the constitutionality of gender-affirming care, but the limits of temporary injunctions in the early stages of a constitutional challenge to discriminatory state laws. It is likely that the Supreme Court will ultimately hear cases on this topic in the near future.
Celebrating the victory, Lambda Legal Counsel and Health Care Strategist Omar Gonzalez-Pagan said in a posted statement, “The court’s decision sends a clear message that gender-affirming care is critical medical care for transgender people and that denying it is harmful and unlawful … We hope this decision makes it clear to policy makers across the country that health care decisions belong to patients, their families, and their doctors, not to politicians.”
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Erin Reed is a transgender woman (she/her pronouns) and researcher who tracks anti-LGBTQ+ legislation around the world and helps people become better advocates for their queer family, friends, colleagues, and community. Reed also is a social media consultant and public speaker.
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The preceding article was first published at Erin In The Morning and is republished with permission.
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