National
Donnelly continues crusade against ‘Don’t Ask’ repeal
CPAC speaker wants more hearings before ban is lifted
Elaine Donnelly (Blade photo by Michael Key)
A leading opponent of “Don’t Ask, Don’t Tell” repeal is continuing her effort to prevent gays from serving openly in the U.S. military and is calling for extended discussion before the military’s gay ban is lifted.
Elaine Donnelly, president of the Center for Military Readiness, on Thursday called for more congressional hearings on allowing gays to serve openly in the military and time to question Pentagon officials before repeal of “Don’t Ask, Don’t Tell” takes effect.
“Our position is Congress should tell the Pentagon, ‘Not so fast!'” she said. “They need to ask questions, they need to have hearings. We need to keep in mind what is the most important thing. … Certainly, the military is too important to be used for social engineering, political payoffs. Diversity is important, yes, but not as a primary goal.”
Donnelly urged for greater deliberation before enacting “Don’t Ask, Don’t Tell” repeal during a panel titled “How Political Correctness Is Harming America’s Military” at the 2011 Conservative Political Action Conference in D.C.
In 20o8, Donnelly gained notoriety as an opponent of gays in the military when she testified during a House hearing on “Don’t Ask, Don’t Tell.” After her testimony, when she decried the possible spread of “HIV positivity” in the military and the “forced intimacy” of straight troops serving with gays, Donnelly was widely criticized and lampooned by the media.
During her CPAC panel appearance, Donnelly denounced the law allowing for repeal of “Don’t Ask, Don’t Tell” that President Obama signed in December, which she said was “rushed through recklessly” in the lame-duck session of the 111th Congress.
“It’s supposed to be a non-discrimination policy,” she said. “But instead of calling it ‘Not “Don’t Ask, Don’t Tell,”‘ … let’s give it a name. We call it the ‘Lesbian, Gay, Bisexual, Transgender Law for the Military’ — ‘LGBT Law’ for short. We have to start thinking about it in terms of what it would do.”
The repeal provides for an end to “Don’t Ask, Don’t Tell” only after the president, the defense secretary and the chairman of the Joint Chiefs of Staff certify the U.S. military is ready for repeal. But Donnelly said this language was a “meaningless” provision in the law.
“There’s going to be a lot of problems,” she said. “The Congress has yet to have hearings on the House side on this, so our position is this: don’t you think we should ask some questions first?”
Fred Sainz, vice president of communications for the Human Rights Campaign, said the debate over ending “Don’t Ask, Don’t Tell” has gone on for 17 years and noted House and Senate committees had several hearings in the last Congress.
“No more discussion is needed on this issue,” Sainz said. “And I think Republicans and Democrats, not just Democrats, but Republicans and Democrats, concluded that that was the case when they voted to go ahead and pass this legislation last year. At some point, you just have to call the question, and that’s exactly what happened.”
During the panel, Donnelly said she and other opponents of “Don’t Ask, Don’t Tell” repeal assembled a 25-page list of questions that “not should be asked, but must be asked” to evaluate the mesaure passed last year.
Among the questions, Donnelly said, is which of the findings in the 1993 law are not valid — how will the armed forces “train people to be less senstive to sexual privacy and modesty.”
Donnelly also raised concerns about “zero tolerance” for service members who object to serving alongside openly gay people.
“What about when you have a problem and say, “This needs to changed,'” Donnelly said. “And someone says, ‘What’s the matter with you? Is there something wrong with your attitude? Are you prejudiced? We’ll get you more training — more LGBT training.'”
Alex Nicholson, executive director of Servicemembers United, said what Donnelly referred to as “zero tolerance” is actually unprofessional behavior in the U.S. military.
“You see a lot, in my experience, from people who oppose this policy change and others, the desire to express their beliefs in an inappropriate and unprofessional manner, and then they get upset when they’re not permitted to engage in that type of behavior,” Nicholson said.
Donnelly also said the controversies found in teaching about same-sex couples in civilian schools would mean the military would likewise have similar problems and would need to implement a “school of choice” system.
“We know how controversial it is to have LGBT training in civilian schools,” Donnelly said. “Just imagine what that’s going to be in the Department of Defense schools where there really is no choice. Will we not need ‘school of choice’ in the Department of Defense? Yes, we will.”
Nicholson said Donnelly’s assertion is a example of someone “talking about the military who has never spent one single day in uniform.”
“There aren’t multiple ideologically based training schools for anything in the military, whether that be for occupations or the leadership academies and things like that,” he said.
Also, Donnelly said military chaplains would have to “endorse homosexuality” if they had to be ministers for openly gay people in the military.
“It was said during hearings in the Senate, ‘Well, we’re going to lose a lot of chaplains,’ so one of the questions is ‘How many chaplains are we going to lose?'” she said.
Sainz identified Donnelly’s assertion about chaplains as among “the half-truths or complete falsehoods” that she’s been repeating in her opposition to “Don’t Ask, Don’t Tell” repeal.
“No one’s being asked to endorse homosexuality,” Sainz said. “It’s kind of a bizarro statement. They are not being asked to put their religious beliefs aside.”
In addition to denouncing the repeal law, Donnelly also took issue with the Pentagon’s report on “Don’t Ask, Don’t Tell.” Taking a line from Sen. John McCain (R-Ariz.), an opponent of repeal in the Senate, Donnelly said the survey that went out to service members as part of the report didn’t ask the right question.
“The survey that was done, the RAND Corp. had a lot to do with it, and a company called Westat or something,” Donnelly said. “They had all these questions and they never once asked the question: ‘Do you favor retention or repeal of the law?'”
One of the questions on the survey asks service members if “Don’t Ask, Don’t Tell” is repealed and they are working with someone who says he or she is gay, how would it affect their unit’s ability to work together to get the job done. About 70 percent of responders said it would have a positive, mixed or no effect.
Nicholson said Donnelly didn’t like the questions that were part of the survey because they didn’t result in responses that would have worked in her favor.
“I think she’s just upset that the purpose was not to conduct a referendum on military policy among members of the force because she thinks she would have won that referendum,” he said.
Joining Donnelly during the panel discussion was Ilario Pantano, a Marine sniper who served in the Iraq war, who used his discussion time to argue that the United States is a Christian nation and that China is building up its defenses “because they fear Jesus Christ.”
Pantano also said he concurred with Donnelly’s sentiments and noted that former Rep. Patrick Murphy, who championed “Don’t Ask, Don’t Tell” repeal in the U.S. House, received what he said was $90,000 from the liberal MoveOn.org and $40,000 from the Human Rights Campaign in the 2010 election.
“If people talk ultimately about issues of fairness, why are they needing to spend tens of millions of dollars to lobby the Democratic Party if it’s truly about efficacy and the good of the people who’ve been in the armed forces,” Pantano said.
In response, Sainz said HRC’s contributions to Murphy’s campaign are “hardly remarkable” because the Pennsylvania lawmaker was a friend and deserved re-election. Sainz added right-wing groups are donating money to anti-gay lawmakers who oppose “Don’t Ask, Don’t Tell” repeal.
Sainz also said Pantano was being “wildly inaccurate” on the money he says HRC spent on the Murphy campaign. According to the Federal Election Commission website, HRC contributed slightly more than $9,000 to Murphy’s campaign in the 2010 election.
Donnelly also attempted to raise fears about the “Don’t Ask, Don’t Tell” repeal law by saying it could open the door to allow openly transgender people in the military. Currently, transgender people aren’t allowed to serve in the armed forces because of regulations.
“Right now, they’re saying no transgenders,” Donnelly said. “They’ve thrown the ‘T’s’ under the bus. But the president has celebrated ‘LGBT Equality Month’ twice in the month of June. So why not? Why not? What is the rationale for excluding them?”
Mara Keisling, executive director for the National Transgender Center for Equality, said Donnelly was raising the issue of transgender people in the U.S. military to draw attention to “her last shrill efforts to try to stop “Don’t Ask, Don’t Tell’ repeal,” but added she’s right that trans people shouldn’t be excluded.
“There is no more reason to exclude trans people from service than there is to exclude women, or anybody, African Americans or gay people,” Keisling said. “It’s just all based on old stereotypes that people like Elaine Donnelly use to advance their own causes.”
Keisling noted that the national study on trans people made public last week found that 20 percent of them were veterans, which she said was double the national average.
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.
National
GLSEN hosts Respect Awards with Billy Porter, Peppermint
Annual event aims to ‘inspire a lot of people to get active’
GLSEN will host its annual Respect Awards April 29 in New York, with guests including Miss Peppermint and Billy Porter.
Respect Awards director Michael Chavez said that the event will be moving.
“It will inspire a lot of people to get active and take action in their own communities and see how much more work there is to do, especially with all of the harmful things happening,” he said.
At the event, they will recognize the Student Advocate of the Year, Sophia T. Annually, GLSEN recognizes a student from around the country who is impacting their community.
“Sophia is doing incredible work advocating for inclusive sex education that is LGBTQ+ affirming, working with Johns Hopkins University to implement curriculum.” Chavez said.
Chavez calls the students that attend the Respect Awards the “biggest celebrities” of the evening.
“It is really important for the adults, both the allies and the queer folks, to hear directly from these queer youth about what it’s like to be in school today as a queer person,” he said.
GLSEN is a queer youth advocacy organization that has been working for more than 30 years to protect LGBTQ youth.
“GLSEN is all hands on deck right now, because our kids are under direct attack and have been for years now,” said actor Wilson Cruz.
Cruz is the chair of GLSEN’s National Board, which works to fundraise and strategize for the organization.
“I think we are fundamental to the education of LGBTQ students in school,” he said. “We advocate for more comprehensive support at the local, national, and federal levels so our students are supported.”
Chavez is one of the students that was impacted by this work. He led his school’s GSA organization and worked with GLSEN throughout his youth.
Cruz said Chavez is doing what he hopes today’s GLSEN students do in the future, which is pay the work forward.
“There’s nothing more powerful than people who have experienced the work that GLSEN does and then coming back and allowing us to expand on that work with each generation that comes forward,” he said.
Florida
Homeless transgender woman murdered in Miami Beach
Andrea Doria Dos Passos attacked while she slept
Gregory Fitzgerald Gibert, 53, who was out on probation, is charged with the second-degree murder of 37-year-old Andrea Doria Dos Passos, a transgender Latina woman who was found deceased in front of the Miami Ballet company facility by a security guard this past week.
According to a Miami Beach Police spokesperson the security guard thought Dos Passos was sleeping in the entranceway around 6:45 a.m. on April 23 and when he went to wake her he discovered the blood and her injuries and alerted 911.
She was deceased from massive trauma to her face and head. According to Miami Beach police when video surveillance footage was reviewed, it showed Dos Passos lying down in the entranceway apparently asleep. WFOR reported: In the early morning hours, a man arrived, looked around, and spotted her. Police said the man was dressed in a black shirt, red shorts, and red shoes.
At one point, he walked away, picked up a metal pipe from the ground, and then returned. After looking around, he sat on a bench near Dos Passos. After a while, he got up and repeatedly hit her in the head and face while she was sleeping, according to police.
“The male is then seen standing over her, striking her, and then manipulating her body. The male then walks away and places the pipe inside a nearby trash can (the pipe was found and recovered in the same trash can),” according to the arrest report.
Police noted that in addition to trauma on her face and head, two wooden sticks were lodged in her nostrils and there was a puncture wound in her chest.
Victor Van Gilst, Dos Passos’s stepfather confirmed she was trans and experiencing homelessness.
“She had no chance to defend herself whatsoever. I don’t know if this was a hate crime since she was transgender or if she had some sort of interaction with this person because he might have been homeless as well. The detective could not say if she was attacked because she was transgender,” said Van Gilst.
“She has been struggling with mental health issues for a long time, going back to when she was in her early 20s. We did everything we could to help her. My wife is devastated. For her, this is like a nightmare that turned into reality. Andrea moved around a lot and even lived in California for a while. She was sadly homeless. I feel the system let her down. She was a good person,” he added.
The Miami Police Department arrested Gibert, collected his clothing, noting the red shorts were the same type in the video and had blood on them. Blood was also found on his shoes, according to police. He was taken into custody and charged.
“The suspect has an extensive criminal record and reportedly was recently released from custody on probation for prior criminal charges. Police apprehended the suspect in the city of Miami and the investigation is currently ongoing. This case is further evidence that individuals need to be held accountable for prior violent crimes for the protection of the public. We offer our sincere condolences to the family and friends of the victim,” Miami Beach Mayor Steve Meiner said in a statement.
Joe Saunders, senior political director with LGBTQ rights group Equality Florida, told the Miami Herald that “whenever a transgender person is murdered, especially when it is with such brutality, the question should be asked about whether or not this was a hate-motivated crime.”
4th Circuit rules gender identity is a protected characteristic
Out in the World: LGBTQ news from Europe and Asia
Weekend brings two shootings in U Street, Dupont Circle areas
GLSEN hosts Respect Awards with Billy Porter, Peppermint
Homeless transgender woman murdered in Miami Beach
Catching up with the asexuals and aromantics of D.C.
Argentina government dismisses transgender public sector employees
Mexican Senate approves bill to ban conversion therapy
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Md. governor signs Freedom to Read Act
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