National
‘Don’t Ask, Don’t Tell’ repeal ‘barely hanging on’
Activists apply last-minute pressure to White House, Senate
The prospects for repealing “Don’t Ask, Don’t Tell” this year continue to fade as LGBT advocates pressure the White House and Congress in hopes that lawmakers will take action before they adjourn for the year.
One Senate Democratic aide, who spoke to the Washington Blade on condition of anonymity, said repeal — currently pending before the U.S. Senate as part of the fiscal year 2011 defense authorization bill — is “barely hanging on with life support.”
“The only way to resuscitate this effort and get a ‘Don’t Ask, Don’t Tell’ vote is for President Obama and [Defense Secretary Robert] Gates to start pushing directly, something we on the Hill had expected the president and Gates to do long ago,” the aide said.
Frustration over the lack of movement on “Don’t Ask, Don’t Tell” prompted activists affiliated with GetEQUAL to take action on Monday and chain themselves to the White House fence in an act of civil disobedience.
The 13 protesters included Lt. Dan Choi, a gay Iraq war veteran who was discharged under “Don’t Ask, Don’t Tell” this year, and Robin McGehee, co-founder and director of GetEQUAL.
In a statement, GetEQUAL said three generations of LGBT activists were arrested as a result of the action. Others who were arrested include former Marine Corps Sgt. Justin Elzie, who became the first Marine discharged under “Don’t Ask, Don’t Tell” in 1993, as well as Michael Bedwell, a long-time advocate of LGBT rights and open service in the U.S. military.
As the protesters were chained to the White House fence, Choi called on President Obama to act on his promise to end “Don’t Ask, Don’t Tell.”
“After all his rhetoric, I think we must conclude that there is truth to the knowledge in homophobia of both sorts: there is a loud homophobia of those with platforms and there is a silent homophobia for those who purport to be our friends and do nothing,” Choi said. “Loud homophobia and silent homophobia have the same result. They must be combated and this is what we intend to do today.”
While the protesters were chained to the White House fence, they chanted the often-used GetEQUAL refrain of “I am … somebody … and I deserve … full equality.” The protesters also added a new refrain, “Barack Obama … Silent Homophobia!”
The protesters superglued their handcuff locks, and, despite repeated warnings from U.S. Park Police, didn’t remove themselves from the White House fence. As police forcibly removed the activists, they dragged their feet as they were hauled into a paddy wagon. It took five police officers to remove Choi from the fence, handcuff him and drag him to the van.
Army Capt. Jim Pietrangelo II, who previously was arrested for chaining himself to the White House, led the chants of the protesters with a bullhorn from Lafayette Park and shouted out to Obama as police dragged the activists away.
“Why are these courageous heroes having to be arrested now?” he shouted. “Mr. President, could you follow the lead of these brave Americans and stop ‘Don’t Ask, Don’t Tell?’”
Pietrangelo called on Obama to issue an executive order to stop the discharges under the military’s gay ban.
In a statement, Shin Inouye, a White House spokesperson, responded to the protest and said Obama is committed to legislative repeal of “Don’t Ask, Don’t Tell.”
“As we have said repeatedly, the president remains committed to a legislative repeal of ‘Don’t Ask, Don’t Tell,’” Inouye said. “The White House continues to work with Congress toward achieving that comprehensive and lasting solution.”
On Wednesday, White House Press Secretary Robert Gibbs expounded on Obama’s commitment to legislative repeal of “Don’t Ask, Don’t Tell” as he acknowledged that the president hasn’t yet reached out to senators to lobby them on the issue.
Asked whether Obama had made any phone calls to “swayable senators” such as Susan Collins (R-Maine), who voted “no” on moving forward with the defense authorization bill in September, Gibbs replied that he doesn’t believe the president has spoken to the Maine senator on the issue.
But Gibbs said he’d put passage of the defense authorization bill in the “same category” for passage as other items he mentioned that Obama wants to see in lame duck, resolving a tax cut issue and ratification of the START Treaty, a nuclear arms reduction agreement with Russia.
“The president believes that this can be done in a way, and should be done, as you heard Secretary Gates and others say, in the next few weeks,” Gibbs said.
Amid doubts about whether the White House would push aggressively for “Don’t Ask, Don’t Tell” repeal this year, Senate leaders are reportedly considering dropping the repeal language from the defense authorization bill to move forward.
Senate Armed Services Committee Chair Carl Levin (D-Mich.) reportedly acknowledged to reporters on Tuesday that taking the repeal provision out of the defense bill is on the table.
“I’m trying to get the bill through Congress,” Levin was quoted as saying. “I’m the committee chairman for a 900-page bill. ‘Don’t Ask, Don’t Tell’ is two pages of 900 pages. My focus is different from the media focus. I’m just trying to get a bill passed.”
Levin maintained that he wants get both passage of the defense authorization bill and repeal of “Don’t Ask, Don’t Tell,” but added “if I can’t get both done, I want to get one of them done.”
The White House issued a statement last week saying it opposed stripping the defense authorization legislation of its repeal language. Gibbs reiterated that position during the press conference.
“We ought to keep this in the defense authorization bill, we ought to pass this in the defense authorization bill, and we ought to end the policy that the courts are rapidly getting close to ending on a timetable that those in the bureaucracy might not [like],” Gibbs said.
Additionally, activists continued to pressure Senate Majority Leader Harry Reid (D-Nev.), who’s responsible for the legislative calendar in the chamber, to bring up the defense authorization bill with the repeal language.
On Monday, the staff for Senate Majority Leader Harry Reid (D-Nev.) offered non-answers to LGBT activists and veterans pressing for a commitment from the senator to bring “Don’t Ask, Don’t Tell” repeal to a vote in the lame duck session of Congress.
A group of about 20 activists affiliated with GetEQUAL — including nine LGBT veterans led by Choi — came to Reid’s Senate office in the Hart Office Building to demand answers on when the Nevada senator would move forward with major defense budget legislation containing repeal of the military’s gay ban.
“We’re here to essentially ask a very important question,” Choi said. “When is Sen. Harry Reid going to put the [fiscal year 2011 defense authorization bill] to a vote that’s inclusive of ‘Don’t Ask, Don’t Tell?’”
But the staffers offered no definitive answers to the inquiries on the defense bill, which is currently pending before the Senate, and said Reid is planning to meet with Senate Minority Leader Mitch McConnell (R-Ky.) later this week to discuss which legislative items would come up before lawmakers adjourn for the year.
A deputy chief of staff for Reid, who didn’t offer his name during the meeting, referred activists to a congressional military fellow and member of the U.S. Army in Reid’s office, who took activists’ questions and said he’d obtain responses for them. Reid’s office didn’t immediately respond to the Blade’s request to identify the staffers.
The source said he couldn’t give a date for when Reid intends to schedule the defense authorization bill for a vote.
“If I told you it’s Tuesday and it doesn’t come up until Wednesday — they’ve got three other cloture votes that they’ve got to get through this week,” the source said. “There are other things that are going on this week.”
The source maintained that passage of the defense authorization bill is “one of the bills that has to be done this year” because the legislation provides funding for the Pentagon and operations in Iraq and Afghanistan.
Still, activists insisted that Senate passage of the defense authorization bill with “Don’t Ask, Don’t Tell” repeal be done before the end of the year and pressed staffers on whether that would happen before Thanksgiving recess.
Most repeal supporters anticipate that the Senate would need two weeks to debate and vote on the defense authorization bill and that scheduling the vote early in lame duck is important.
Asked whether he could say whether the vote would come up before Thanksgiving, the Reid source replied, “I cannot.”
In a statement to the Blade, Jim Manley, a Reid spokesperson, said there’s “nothing new yet” with regard to scheduling decisions on the defense authorization bill.
In addition to questions about scheduling, the LGBT advocates also sought assurances that Reid wouldn’t strip the defense authorization bill of its “Don’t Ask, Don’t Tell” repeal provision before bringing it to the floor.
The Reid source said he “couldn’t tell you one way or another” whether the option of passing the defense authorization bill without the “Don’t Ask, Don’t Tell” repeal language is on the table.
“I honestly don’t know,” he said. “Because I am a fellow that’s one of the things that — I can look into it.”
Additionally, activists inquired about what Reid had done with Choi’s West Point graduate ring, which the Iraq veteran had given to the senator at the Netroots Nation conference in the summer to remind Reid of his commitment to repeal the 1993 law.
McGehee asked whether Reid was keeping the ring in a shoebox or in his desk and whether he has “forgotten that he made a promise in July.”
The fellow said he would look into the whereabouts of Choi’s ring.
At one point, McGehee called the fellow a “token military person” that Reid’s staff brought out to “act like” he knows LGBT issues.
“In my opinion, Sen. Reid has had the time to show the leadership, my parents are constituents of his state, and I feel like he’s failed not only them as constituents, but Lt. Choi, as a promise that he made in July,” McGehee said.
McGehee’s remarks riled the deputy chief of staff, who insisted the fellow wasn’t a token and that he was brought out because staffers thought he was the most appropriate person to answer questions.
In response, McGehee maintained activists weren’t shooting the messenger, but said if Reid wouldn’t give a commitment that “Don’t Ask, Don’t Tell” would come up before the Senate by the end of the year, activists would be back.
“It’s in his hands now,” she said.
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.
It’s game, set, and mismatch in unfulfilling ‘Challengers’
D.C. Council member proposes change for Mayor’s Office of LGBTQ Affairs
United Methodist Church removes 40-year ban on gay clergy
Republican state AGs challenge Biden administration’s revised Title IX policies
University students have a right to protest
HHS reverses Trump-era anti-LGBTQ rule
4th Circuit rules gender identity is a protected characteristic
PHOTOS: Capital Pride Pageant
New World Bank US executive director: LGBTQ rights are human rights
