National
‘Don’t Ask, Don’t Tell’ is gone
After 18 years, military’s gay ban sent to history books
The anti-gay law that for 18 years has prevented openly gay people from serving in the U.S. military is today finally lifted from the books and cast in the dustbin of history.
Under the law, which came to be known as “Don’t Ask, Don’t Tell,” an estimated 14,346 service members were discharged from the armed forces because of their sexual orientation. The gay ban was officially removed from the books at 12:01 am.
“Don’t Ask, Don’t Tell” has been lifted thanks to repeal legislation President Obama signed in December. But before repeal could take effect, the law required Obama and Pentagon leaders send certification to Congress.
On July 22, Obama, Defense Secretary Leon Panetta and Chairman of the Joint Chiefs of Staff Adm. Mike Mullen certified the U.S. military was ready for repeal, starting the 60-day period leading to today when the ban has finally come to an end.
The Washington Blade obtained statements that reflect on the end to “Don’t Ask, Don’t Tell” from Obama, LGBT advocates and lawmakers who were involved in the repeal process:
PRESIDENT OBAMA
“Today, the discriminatory law known as ‘Don’t Ask, Don’t Tell’ is finally and formally repealed. As of today, patriotic Americans in uniform will no longer have to lie about who they are in order to serve the country they love. As of today, our armed forces will no longer lose the extraordinary skills and combat experience of so many gay and lesbian service members. And today, as Commander in Chief, I want those who were discharged under this law to know that your country deeply values your service.”
“I was proud to sign the Repeal Act into law last December because I knew that it would enhance our national security, increase our military readiness, and bring us closer to the principles of equality and fairness that define us as Americans. Today’s achievement is a tribute to all the patriots who fought and marched for change; to Members of Congress, from both parties, who voted for repeal; to our civilian and military leaders who ensured a smooth transition; and to the professionalism of our men and women in uniform who showed that they were ready to move forward together, as one team, to meet the missions we ask of them.”
“For more than two centuries, we have worked to extend America’s promise to all our citizens. Our armed forces have been both a mirror and a catalyst of that progress, and our troops, including gays and lesbians, have given their lives to defend the freedoms and liberties that we cherish as Americans. Today, every American can be proud that we have taken another great step toward keeping our military the finest in the world and toward fulfilling our nation’s founding ideals.”
LGBT ADVOCATES
Joe Solmonese, president of the Human Rights Campaign:
“[Today] is a historic day for gay and lesbian service members and our nation as a whole. ‘Don’t Ask, Don’t Tell’ was a stain on our nation — not only did it damage our military readiness and national security, but it sent a message that discrimination based upon sexual orientation was acceptable. We know that not to be the case — discrimination accomplishes nothing and tears at the fabric of our country’s strength.”
“Beginning [today], gay and lesbian service members previously discharged under [‘Don’t Ask, Don’t Tell’] will have the opportunity to re-enlist. Gay and lesbian Americans eager to serve the country but not willing to compromise who they are as individuals will, for the first time ever, be able to openly join. And brave men and women currently serving will have the freedom to come out and be honest with their comrades about who they are and who they love.”
“Despite this progress, much work remains to ensure full equality in the military. The so-called Defense of Marriage Act will prohibit gay and lesbian service members and their spouses from receiving many of the benefits their straight counterparts receive. Limiting regulations also impact areas like military family housing, access to legal services, and spousal relocation support. We also are continuing to deal with an infrastructure ill-prepared to handle incidents of discrimination and harassment against gay and lesbian service members. It is incumbent upon fair-minded legislators to continue pushing equality forward by standing up to discriminatory legislative tactics, pushing for repeal of DOMA, examining barriers to service for qualified and dedicated transgender Americans, and ensuring gay and lesbian military families get the same access to benefits as everyone else.”
“This was a hard-fought victory, and supporters of equality should feel proud. But we cannot lose sight of the challenges that remain — from passing the Employment Non-Discrimination Act to bar employment discrimination in every workplace, to bringing an end to DOMA through the Respect for Marriage Act, and to combatting anti-gay activities and rhetoric from political leaders and hate groups. This is indeed a historic moment, but we remain focused on the work ahead.”
Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network:
“Today marks the official end of ‘Don’t Ask, Don’t Tell’ and is an historic milestone along the journey to achieving full LGBT equality in America’s military. Thanks to you — the veterans, active duty, leaders, allies and supporters who have fought so long and hard — this is a monumental day for our service members and our nation. Indeed, we have taken a tremendous leap forward for LGBT equality in the military.
“Our work is far from done, but today we pay tribute to the service and sacrifice of our patriots as we look forward to a new era of military service — one that honors the contributions of all qualified Americans who have served and wish to serve.”
Alex Nicholson, executive director of Servicemembers United:
“On March 15, 1778 the first American servicemember was drummed out of the military for being gay. Since then, tens of thousands more have had their careers ruined and their lives turned upside down by a succession of anti-gay polices and regulations, culminating in the codification of an anti-gay statute in 1993 with the passage of the ‘Don’t Ask, Don’t Tell’ law. In all, 14,346 men and women were discharged pursuant ‘Don’t Ask Don’t Tell.’ But thanks to the persistent hard work of unwavering advocates, especially those who have been directly impacted by this issue, and some courageous politicians over the past six years, ‘Don’t Ask, Don’t Tell’ is now history. As a result, those who continue to serve can sleep easier tonight knowing that they can no longer be arbitrarily fired because of their sexual orientation. Justice has prevailed and ‘Don’t Ask, Don’t Tell’ is dead. God bless America.”
Robin McGehee, director of GetEQUAL, which is organizing a “Day of Discontent” of rallies pushing for further LGBT rights in more than a dozen cities on the day “Don’t Ask, Don’t Tell” is lifted:
“It has taken 17 years of hard work to remove this discriminatory policy, and still our community faces discrimination and intolerance on a daily basis that this one important victory won’t fix. [Today’s] collaborative effort by LGBT organizers across this nation will show lawmakers that we will not be content until we have full federal equality in all matters governed by civil law. We cannot and will not accept anything less — for ourselves, our families and our communities.”
Josh Seefried, an active duty Air Force officer and co-director of OutServe, an organization of actively serving LGBT military personnel (under “Don’t Ask, Don’t Tell,” Seefried went by J.D. Smith to avoid being outed under the law):
“I feel privileged and honored to serve during this time in our nation’s history. This change in policy has not only made our military stronger, but America stronger. I’m proud to serve in the United States Air Force and proud of the fact gay service members can now do their job with their integrity intact.”
Rea Carey, executive director of the National Gay & Lesbian Task Force:
“Today marks the end of an ugly era in American history. After nearly two decades, lesbian, gay and bisexual service members will finally be able to serve their country openly and honestly. Those who fight for freedom will now themselves be able to live more freely. We celebrate this historic moment, which could not come fast enough. Thousands of exemplary and courageous service members have lost their careers and livelihoods to this unjust policy, once again proving there are very personal and costly consequences of discrimination.
“While we observe this tremendous, hard-fought victory for lesbian, gay and bisexual service members, we recognize the journey is not over. Transgender service members are still being forced to serve in silence. This is unacceptable. All qualified, patriotic Americans willing to risk their lives for this country should be able to do so free from discrimination. In addition, the military still lacks explicit nondiscrimination protections, equal benefits and an inclusive equal opportunity policy for LGBT people. We will continue to work toward the day when full inclusion is a reality in the military.”
U.S. LAWMAKERS
House Minority Leader Nancy Pelosi (D-Calif.)
“With the long-overdue end of the discriminatory ‘Don’t Ask, Don’t Tell’ policy, our nation will finally close the door on a fundamental unfairness for gays and lesbians, and indeed affirm equality for all Americans. When the Democratic majorities in the House and Senate took action last year to end this wrongheaded policy, we reaffirmed the core American principle that anyone who wishes to serve, secure, and defend this country must be judged by their abilities and honored for their dedication and sacrifice.”
“For those gays and lesbians discharged unfairly, including those who seek re-accession, we must correct their paperwork so that it properly reflects their service. We must continue efforts to repeal the discriminatory Defense of Marriage Act, but in the meantime, I urge the Obama Administration to investigate opportunities to extend the same support and benefits to all our troops and their families. We cannot allow there to be two classes of service members in our military — those who receive benefits for their families and those who do not.
“This landmark progress comes after the President, the Chairman of the Joint Chiefs of Staff, and the Secretary of Defense have all certified that repeal will not hurt military readiness or unit cohesion.”
“America is the land of the free and the home of the brave because of our men and women in uniform. And [today], we honor their service by recommitting to the values that they fight for on the battlefield.”
Senate Majority Leader Harry Reid (D-Nev.)
“Today marks the end of a shameful and counterproductive policy that needlessly destroyed careers and harmed our military readiness. Thousands of qualified men and women who want to serve our country will now be able to do so without fearing their careers could end due to their sexual orientation. Our armed forces will be stronger because now our military commanders and our nation can be sure we will have the best and brightest service members on the job, regardless of ethnicity, creed or sexual orientation.”
Senate Armed Services Committee Chair Carl Levin (D-Mich.):
“Beginning Tuesday, thousands of brave American service members will be able to serve the country they love without concealing part of their identity. They will no longer have to lie in order to help protect us. The end of ‘Don’t Ask, Don’t Tell’ is an important victory not just for equality, but integrity. And this victory will come without harming our military’s readiness or effectiveness. I applaud the military and civilian leaders throughout the Department of Defense who have helped us to adopt this historic change.”
Sen. Susan Collins (R-Maine), original co-sponsor of the Senate repeal legislation:
“Today represents an historic change for our military and our country. Today, for the first time in our history, we welcome the service of any qualified individual who is willing and capable of serving our country. Today, we will no longer dismiss brave, dedicated, and skilled service men and women simply because they are gay. The repeal of ‘Don’t Ask, Don’t Tell’ is a victory for our national security, and our values, and it strengthens the ranks of our military.”
Sen. Mark Udall (D-Colo.)
“Today is a great day for our national security. Repealing [‘Don’t Ask, Don’t Tell’] will strengthen our military by allowing it to attract our nation’s best talent, regardless of whom they love. The service members who will come out today are the same soldiers, sailors, airmen and Marines they were yesterday — the only thing that has changed is that they can now be honest and open about who they are.”
“Countless young men and women in uniform — gay and straight — have told me that in combat, sexual orientation, race, religion and gender simply don’t matter. Our military leaders were given the time and flexibility to study and implement repeal — they say they’re ready, our troops are ready, and I’m incredibly proud that we’re finally closing the book on ‘Don’t Ask, Don’t Tell’ and putting it where it belongs — the dustbin of history.”
Watch Udall’s video commemorating the end to “Don’t Ask, Don’t Tell” here:
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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