National
Levin doubts votes for ‘Don’t Ask’ repeal
Sen. Carl Levin (DC Agenda photo by Michael Key)
A key senator who opposes “Don’t Ask, Don’t Tell” is doubtful that sufficient support exists to repeal the law this year as he continues to push for a legislative moratorium on discharges.
Senate Armed Services Committee Chairman Carl Levin (D-Mich.) told reporters following a hearing Thursday he’d favor legislation to overturn “Don’t Ask, Don’t Tell” this year, but said there “will be great difficulty in succeeding in repeal.”
“I’m in favor of repeal, but I don’t favor going to a vote if it’s going to be a setback for those of us who think the program should be repealed,” he said. “I can take a whip check, but I think there’s a real problem … getting repeal approved.”
Fearing a lack of votes, Levin said he’s pushing for a legislative moratorium. The senator noted that such a measure would be “logical” because it doesn’t predetermine the outcome of the Pentagon study currently underway.
“Once the commander-in-chief says people shouldn’t be discharged for simply being gay, I think there’s real dilemma,” he said. “And when we think about that dilemma … hopefully, we’ll lead people to see that the moratorium is an attractive position because it doesn’t prejudge the outcome.”
Levin said he wants a legal opinion of the validity of a moratorium as well as what will happen with pending discharges as the Pentagon completes its review.
Asked whether the White House has been pushing for a moratorium as a way to address “Don’t Ask, Don’t Tell” this year, Levin replied, “Not to me. They may have in some other place.”
But groups opposing “Don’t Ask, Don’t Tell” are reluctant to embrace a moratorium and say there’s still an opportunity this year for repealing the law outright. In an organizational statement sent by spokesperson Trevor Thomas, the Human Rights Campaign emphasized the possibility of repeal this year.
“We believe the votes to repeal this failed law can be found and everyone who wants to see ‘Don’t Ask, Don’t Tell’ end needs to strenuously lobby their elected leaders,” says the statement.
Kevin Nix, spokesperson for the Servicemembers Legal Defense Network, was similarly bullish in a statement on passing full repeal this year.
“It’s too early to be talking about … half measures like a moratorium,” he said. “We’re focused squarely on getting full, permanent repeal of [‘Don’t Ask, Don’t Tell’] in the defense authorization bill.”
Alex Nicholson, executive director of Servicemembers United, said he would support any measure that “had a realistic chance” of alleviating the burden on gay service members, but noted that he was unconvinced a moratorium would be a politically easier vote than outright repeal.
“We’ve heard from some offices on the Hill that they don’t see a practical difference between the two,” he said. “So if there’s going to be a vote on anything this year, we would like it to be on full repeal.”
Nicholson said he would much prefer a push for a vote on full repeal “with modifications” rather than “settle for an equally tough vote on a temporary moratorium.”
During the hearing Thursday, lawmakers pressed Navy and Marine Corps leaders on their views on “Don’t Ask, Don’t Tell.”
When Levin asked witnesses whether they support repeal of the 1993 law at this time, Navy Secretary Ray Mabus said he favors repeal but also supports the study advanced earlier this month by Defense Secretary Robert Gates.
“Since ‘Don’t Ask, Don’t Tell’ is a law, whatever happens resides in Congress,” he said. “I support the repeal of ‘Don’t Ask, Don’t Tell,’ and I think the president has come up with a very practical and workable way to do that.”
Chief of Naval Operations Adm. Gary Roughead and Marine Corps Commandant Gen. James Conway reiterated their support for the Pentagon’s review as they had done in congressional testimony Wednesday.
But Conway said he wouldn’t want any change to undermine military readiness, and noted that “Don’t Ask, Don’t Tell” is working. He advised against any change at this time.
“At this point, I think the current policy works,” he said. “My best military advice to this committee, to the secretary, to the president, would be to keep the law such as it is.”
In a statement, Servicemembers Legal Defense Network Executive Director Aubrey Sarvis rebuked Conway for his remarks, saying the commandant was having his position both ways by supporting a study geared toward ending “Don’t Ask, Don’t Tell” and opposing repeal at this time.
“General Conway was the only chief to say to Congress this week that the law is ‘working,’” Sarvis said. “It is not working. Having a law on the books that fires talented troops, at a time of two wars when all manpower is needed, is not effective and does not enhance the performance and readiness of the force.”
During the hearing, Sen. Joseph Lieberman (I-Conn.), who’s slated next week to introduce Senate repeal legislation, said he agreed with Conway that overturning “Don’t Ask, Don’t Tell” should be “held up to the standard of the military readiness.”
“I’m supportive of the end to ‘Don’t Ask, Don’t Tell,’” he said. “I believe it’s the fair and right thing to do, but in the end … this has to pass the test of military readiness.”
Lieberman said he believes repeal will pass this test based on what’s happened in other countries that have lifted their bans on open service.
“I hope that we will conclude repealing ‘Don’t Ask, Don’t Tell’ will enhance military readiness, but that’s yet to be determined as the study goes on,” he said.
The issue of what the United States can learn from foreign militaries in implementing repeal also emerged during the hearing. Roughead said the working group was necessary to examine the impact on repeal on the U.S. Navy. He said other studies on the effect of repeal on other navies that have lifted bans on open service don’t address the consequences of repeal in the United States.
“While I have high regard for those other forces, they are not us, they do not come from our culture, they do not come from the beliefs that young men and bring into the service,” he said.
Nathaniel Frank, author of “Unfriendly Fire” and research fellow at the Palm Center, has emphasized in arguments in favor of repeal how other countries have lifted bans on open service. Responding to Roughead, Frank said the United States can learn from these countries on this open service as it has on other issues.
“There’s no question that each culture is different, each military is different,” he said. “But the U.S. military has repeatedly looked to other militaries to study issues, including this issue, as well as housing and health and personnel management.”
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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HHS reverses Trump-era anti-LGBTQ rule
4th Circuit rules gender identity is a protected characteristic
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