National
U.S. House approves defense bill with anti-gay provisions
Bill reaffirms DOMA, could disrupt ‘Don’t Ask’ repeal
The U.S. House approved on Thursday major Pentagon budget legislation that includes anti-gay language that could disrupt “Don’t Ask, Don’t Tell” repeal and would reaffirm the Defense of Marriage Act.
By a vote of 322-96, the Republican-controlled House approved the fiscal year 2012 defense authorization bill after three days of debate that discussed continued military operations in Afghanistan, funding for next-generation military programs and increased pay rates for U.S. troops.
Among the many provisions of the defense authorization bill is anti-gay language that the House Armed Services Committee inserted upon consideration of the legislation.
The most high-profile anti-gay provision — offered as an amendment by Rep. Duncan Hunter (R-Calif.) — is language that would expand the certification requirement needed for repeal to include the four military service chiefs. Such a provision would complicate the repeal process established by the law signed in December, which would implement open service after 60 days pass following certification from the president, the defense secretary and the chair of the Joint Chiefs of Staff.
Another provision, offered as an amendment by Rep. Vicky Hartzler (R-Mo.), reaffirms that the Defense Department and its regulations are subject to the Defense of Marriage Act, which prohibits federal recognition of same-sex marriage.
Yet another provision — offered as an amendment by Rep. W. Todd Akin (R-Mo) — prohibits military facilities for being used for same-sex marriage ceremonies, even in states where same-sex marriage is legal, and prevents military chaplains from presiding over same-sex marriages in their official capacities. The language would expand the federal restrictions on same-sex marriage beyond what DOMA already imposes.
Laura Murphy, director of the ACLU Washington Legislative Office, expressed concerns over passage of the legislation — particularly for the inclusion of a provision authorizing worldwide war against terrorism suspects and nations suspected of supporting them — in addition to objecting to the provision that would complicate “Don’t Ask, Don’t Tell” repeal.
“Trying to throw a roadblock up to derail ‘Don’t Ask, Don’t Tell’ repeal at this point is a desperate attempt to postpone the inevitable,” Murphy said. “For nearly 20 years, lesbian, gay and bisexual service members have been forced to hide who they are and who they love in order to serve their country. It was with the will of the president, the uniformed and civilian leadership of the military and Congress itself that ‘Don’t Ask, Don’t Tell’ was repealed and its implementation will continue to move forward successfully despite the attempts by some House members to disrupt it.”
A number of lawmakers who supported “Don’t Ask, Don’t Tell” repeal last year voted in favor of the defense authorization bill despite the anti-gay language. On the House floor, some pro-repeal lawmakers said they were casting affirmative votes because they said they think the bill as whole is good for the U.S. armed forces.
On Tuesday, Rep. Susan Davis (D-Calif.), ranking Democrat on the House Armed Services personnel committee, objected to the language in the bill related to “Don’t Ask, Don’t Tell” as she expressed support for the legislation as a whole.
“While there are many good provisions in this bill, I must raise my extreme disappointment with several sections that were included by the majority that seek to delay and prevent gays and lesbians from serving in uniform,” Davis said. “One of the liberties that we as Americans hold dear is that we are all created equal. These individuals should be entitled to serve their Nation in uniform and should not be denied the opportunity.”
House Minority Leader Nancy Pelosi (D-Calif.) was also among the “Don’t Ask, Don’t Tell” repeal supporters who voted in favor of the defense authorization bill.
Drew Hammill, a Pelosi spokesperson, said the Democratic leader voted for the defense authorization bill despite the “Don’t Ask, Don’t Tell” language because she believes this provision won’t ultimately make it to the president’s desk.
“Leader Pelosi strongly opposes the [‘Don’t Ask, Don’t Tell’] language in the [defense] Authorization bill but believes the provisions concerning [‘Don’t Ask, Don’t Tell’] repeal will be removed in conference,” Hammill said. “If these provisions remain intact and are an obstacle to [‘Don’t Ask, Don’t Tell’] repeal implementation, she believes President Obama should veto the legislation.”
But each of the four openly gay members of Congress — Reps. Barney Frank (D-Mass.), Tammy Baldwin (D-Wis.), Jared Polis (D-Colo.) and David Cicilline (D-R.I.) — were among the among the 96 “no” votes on the legislation.
Although the House approved the defense authorization bill with anti-gay language, passing such a measure into law would be challenging because the Democratic-controlled Senate would have to agree to the anti-gay language during conference negotiations.
Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said his organization is looking to the Senate to ensure the anti-gay provisions won’t appear in the final version of the defense authorization bill.
“The opposition may well believe they won the day in the House, simply outnumbering repeal advocates,” Sarvis said. “But this fight is far from over. We must look to repeal supporters in the Senate, where the defense bill will be taken up next and where we are better positioned than in the House. We need to beat back this harmful language and make sure it does not survive in conference committee.”
Another roadblock for the anti-gay language is President Obama, who would have to sign the provisions into law as part of the larger measure for them to enacted. The White House issued a Statement of Administration Policy earlier this week denouncing the provisions related to “Don’t Ask, Don’t Tell” and DOMA — although stopped short of threatening to veto the bill over this language.
Moreover, the certification expansion for “Don’t Ask, Don’t Tell” repeal may well be a moot point even if the legislation reaches the president’s desk. Defense officials have testified that certification for repeal could happen mid-summer, and the final version of the defense bill likely will not reach the president’s desk until after that time, rendering the provision useless.
Alex Nicholson, executive director of Servicemembers United, expressed skepticism about the anti-gay measures becoming law or thwarting “Don’t Ask, Don’t Tell” repeal.
“The passage of the defense authorization bill with these hostile amendments included comes as no surprise, and it should not become a cause for concern as long as our allies in the Senate and the president all stand strong and refuse to support a defense bill containing these amendments,” he said. “These amendments were nothing short of a waste of time by lawmakers who were sent to Washington to do serious business and a waste of taxpayer money. The Pentagon, the president, and the American people have made it abundantly clear — we are moving forward and building a stronger military free of unnecessary discrimination.”
No attempt was made on the House floor to strip the defense authorization bill of its anti-gay language. Del. Eleanor Holmes Norton (D-D.C.) had intended to offer an amendment to remove the language related to “Don’t Ask, Don’t Tell,” according to the Rules Committee website, but never offered the measure. Kezmiche Atterbury, a Norton spokesperson, said her boss “withdrew her amendment for tactical reasons.”
Informed sources said House Democratic leaders offered those who worked last year to repeal “Don’t Ask, Don’t Tell” repeal the opportunity for an amendment on the floor to eliminate the language in the defense authorization bill related to certification expansion.
However, the five major repeal organizations — the Human Rights Campaign, Servicemembers Legal Defense Network, Third Way, Servicemembers United and the Center for American Progress — agreed to decline the opportunity for the amendment.
According to sources, repeal advocates believed such a amendment would likely fail and could pick up support from moderate House Democrats. A defeat on the House floor, advocates believed, would increase the chances of the Senate adopting the certification expansion language.
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.”
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