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9 U.S. senators to Harkin: Time to move on ENDA

Bipartisan group calls for vote on non-discrimination bill

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A bipartisan group of nine senators is backing the idea of having the Senate panel with jurisdiction over the Employment Non-Discrimination Act advance the legislation to the floor by a committee vote.

The group is asking for Sen. Tom Harkin (D-Iowa), chair of the Senate Health, Education, Labor & Pensions Committee, to hold a markup on ENDA in the wake of the panel’s hearing on the legislation last week and the senator’s remarks to the Washington Blade immediately afterward that he wanted “to poll the committee” about moving the bill forward.

Mark Kirk, gay news, gay politics dc, enda

Sen. Mark Kirk is among those calling for an ENDA markup (Washington Blade file photo by Michael Key)

In the week after the hearing, the Blade solicited statements from the offices of all 22 members of the Senate panel on whether they want to see the committee move the legislation to the Senate floor. Those who responded affirmatively were spokespersons for Sens. Jeff Merkley (D-Ore.), ENDA’s lead sponsor, as well as Sens. Barbara Mikulski (D-Md.), Patty Murray (D-Wash.), Bernard Sanders (I-Vt.), Bob Casey (D-Pa.), Al Franken (D-Minn.), Michael Bennet (D-Colo.), Richard Blumenthal (D-Conn.) and Mark Kirk (R-Ill.), the only Republican on the panel who responded to the Blade’s inquiry.

All 12 Democrats on the panel — as well as Kirk, an original co-sponsor of the bill — are among the 41 total co-sponsors of ENDA, so the bill should have no trouble moving out of committee. The legislation would bar employers in most situations in the public and private workforce from discriminating against workers because of their sexual orientation or gender identity.

Sanders’ office accompanied his call for a committee vote on ENDA with a statement saying the time is now to pass ENDA to end workforce discrimination against LGBT people.

“As I’ve said many times before, discrimination of any kind is not what America is supposed to be about,” Sanders said. “Yet only 16 states, including my own state of Vermont, and D.C. currently prohibit discrimination based on sexual orientation and gender identity. I will fully support Sen. Merkley and Chairman Harkin in their efforts to move the Employment Non-Discrimination Act out of committee, because no Americans should have to live with the fear of losing their jobs simply because of who they are.”

The support that Murray’s office conveyed to the Blade echoes the sentiment she expressed about moving the legislation forward during the committee hearing last week. Murray was explicit in calling for a markup, saying she wants to see ENDA pass out of committee “expeditiously.” In response, Harkin said, “I hope so.”

But speaking to the Washington Blade after the hearing, Harkin was non-committal about holding a markup, saying he wants to speak with panel members before moving forward.

Senate HELP Committee Chair Tom Harkin (Blade file photo by Michael Key)

“I’m going to poll my committee and see,” Harkin said. “Right now, I’m kind of up to here in getting [Food & Drug Administration] bill through, as you know. We got it through the Senate; we’ve got to work with the House on that trying to get that put to bed, and then I’m going to poll the committee and see what we want to do.”

The Senate HELP Committee didn’t respond to a request for comment on the possibility of holding a markup on ENDA. It’s unclear whether the seven senators who expressed support for a markup to the Blade’s solicitation is enough support for Harkin to schedule a markup.

Tico Almeida, president of Freedom to Work, said a markup would enable the committee to make technical changes to the bill before taking it to the Senate floor for final passage.

“Senate rules allow leader Reid to bring ENDA to the floor of the Senate without a committee vote, but a committee mark-up would present a good opportunity for Chairman Harkin to make technical improvements to ENDA, for example, by fixing the legal loophole created by a bad Supreme Court decision called Gross vs. FBL Financial,” Almeida said. “Mr. Harkin recently introduced legislation to fix the same loophole in the age discrimination statute, and ENDA needs the same fix to be incorporated into the bill.”

Ian Thompson, legislative representative for the American Civil Liberties Union, also backed the idea of a committee markup as a way to advance ENDA.

“The Senate HELP Committee should move forward with a markup of this critical and long overdue legislation that will allow American workers who stand side-by-side at the workplace and contribute with equal measure in their jobs to also stand on the same equal footing under the law,” Thompson said.

Thompson added the committee should make modifications to the bill when it comes up for consideration: (a) narrowing the legislation’s exemption so that it doesn’t provide religious organizations “with a blank check” to discriminate against LGBT people for any reason and not just religious teachings, and (b) removing a provision that expands the Defense of Marriage Act and allows employers in states where same-sex couples can legally marry to treat married gay employees as unmarried for the purposes of employee benefits.

Reporting the legislation to the floor would be similar to what Sen. Patrick Leahy (D-Vt.) did for the Respect for Marriage Act, legislation that would repeal the Defense of Marriage Act. In November, Leahy held a markup on the bill in the Senate Judiciary Committee, passing the bill via a party-line vote.

A committee markup may be the furthest extent to which ENDA can advance during the 112th Congress. The 41 co-sponsors of the legislation fall significantly short of the 60 votes needed to overcome a Senate filibuster. Additionally, it’s highly unlikely that the Republican-controlled House would consider ENDA as long as House Speaker John Boehner (R-Ohio) is the presiding officer of that chamber.

The office of Sen. Jeff Bingaman (D-N.M.) reiterated the senator’s support for ENDA in response to the Blade inquiry without explicitly calling for a markup. Jude McCartin, a Bingaman spokesperson said, “Sen. Bingaman is a cosponsor of the bill and as such intends to vote for it.” McCartin didn’t respond to follow up inquiries to clarify whether this means Bingaman wants to see a markup.

But some of the committee members who responded affirmatively to the idea of a markup — Merkley, Murray, Casey and Kirk — went further and volunteered they also want to see a floor vote on the legislation despite the lack of assured passage of the legislation. Even a vote that failed would demonstrate where senators stand on the bill — and which lawmakers ENDA supporters should work to expel on Election Day.

Merkley expressed support for the idea of a markup and floor vote in response to a question from the Washington Blade during a conference call with reporters following the ENDA hearing last week.

“I support any effort that takes this issue forward whether it’s a markup in committee or it going straight to the floor,” Merkley said. “I’ll defer to the leadership of the committee on the most effective legislative strategy, but I think it is long past time for the Senate as a whole to debate and vote on this bill.”

In a statement to the Blade, Casey expressed support for a Senate vote on ENDA in a statement accompanying his backing a markup of the bill.

“I hope that the Senate moves quickly toward bipartisan passage of the Employment Non-Discrimination Act,” Casey said. “This common-sense legislation ensures that employees are judged on their skills and abilities in the workplace and not on their sexual orientation or gender identity and I am hopeful that it will see swift passage.”

Kirk’s support for both a markup and floor vote on ENDA puts him ahead of many Democrats on where he wants to take the legislation. Kate Dickens, a Kirk spokesperson, said, “Sen. Kirk is supportive of committee passage and floor consideration of ENDA.”

Christian Berle, deputy executive director of the Log Cabin Republicans, said his organization supports Kirk’s call to advance the legislation as far as possible in the Senate.

“Jobs and the economy must be the first priority for Congress, and the freedom to work is fundamental to getting all Americans back to work,” Berle said. “Log Cabin Republicans support Sen. Mark Kirk’s effort to secure a markup both in committee and on the floor. Sen. Harry Reid remains the majority leader and could easily schedule a vote to maintain his commitment to equality and should not delay in doing so.”

Support for a floor vote on ENDA echoes a letter that Freedom to Work sent to Senate Majority Leader Harry Reid (D-Nev.) calling for a floor vote this summer on the legislation. The letter notes that Reid said during a 2009 Human Rights Campaign dinner in Utah a floor vote on ENDA would take place “soon” — but has yet to happen — as well as the Blade’s questioning of then-White House Press Secretary Robert Gibbs at the start of this Congress.

In response to a question on whether the administration sees values in passing ENDA in one chamber of Congress, Gibbs acknowledged, “there’s no doubt that whenever you get something done in one [chamber], you’re closer to certainly seeing it come to fruition.”

A number of LGBT groups — including the Human Rights Campaign and the National Gay & Lesbian Task Force — had previously called for a markup of ENDA as they sought a Senate hearing on the legislation. But the call for a full Senate vote on ENDA wasn’t as unified.

Fred Sainz, HRC’s vice president of communications, wasn’t explicit in calling for a floor vote when asked by the Blade if his organization wants to see the Senate take the legislation that far during this Congress.

“HRC supports advancing the bill in the smartest, most strategic fashion and at the most opportune time,” Sainz said. “We will continue to work with our ally organizations as well as fair-minded members of both houses of Congress to find that time.”

Stacey Long, the Task Force’s director of public policy and government affairs at the National Gay and Lesbian Task Force, said her organization wants to see a Senate vote, but only after the committee has first marked up the bill.

“We want it to follow the procedure — first voted out of committee, then sent to the Senate floor, followed by a full Senate vote,” Long said.

But Almeida insisted that a Senate floor vote on ENDA is the best possible route for the bill in the immediate future regardless of what action the committee takes.

“The most opportune time for a Senate vote on ENDA is right away,” Almeida said. “We should not accept excuses for further delay on a Senate vote for legislation supported by super-majorities of the American people. … ENDA now has Republicans calling for a full Senate vote, and that is consistent with the White House’s position that right now the administration prefers a congressional vote on ENDA rather than an executive order that is waiting for the president’s signature.”

Almeida was referring to the proposed executive order barring federal contractors from discriminating against workers based on sexual orientation and gender identity. In April, the White House announced it wouldn’t issue such a directive at this time.

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Federal Government

Two very different views of the State of the Union

As Trump delivered his SOTU address inside the Capitol, Democratic lawmakers gathered outside in protest, condemning the administration’s harmful policies.

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President Donald Trump speaks at the State of the Union address at the U.S. Capitol on Feb. 24. (Washington Blade photo by Michael Key)

As President Donald Trump delivered his State of the Union address inside the U.S. Capitol — touting his achievements and targeting political enemies — progressive members of Congress gathered just outside in protest.

Their message was blunt: For many Americans, particularly LGBTQ people, the country is not better off.

Each year, as required by Article II, Section 3 of the Constitution, the president must “give to the Congress Information of the State of the Union.” The annual address is meant to outline accomplishments and preview the year ahead. This year, Trump delivered the longest State of the Union in U.S. history, clocking in at one hour and 48 minutes. He spoke about immigration, his “law and order” domestic agenda, his “peace through strength” foreign policy doctrine, and what he framed as the left’s ‘culture wars’ — especially those involving transgender youth and Christian values.

But one year into what he has called the “Trump 2.0” era, the picture painted outside the Capitol stood in stark contrast to the one described inside.

Transgender youth

In one of the most pointed moments of his speech, Trump spotlighted Sage Blair, using her story to portray gender-affirming care as coercive and dangerous. Framing the issue as one of parental rights and government overreach, he told lawmakers and viewers:

“In the gallery tonight are Sage Blair and her mother, Michelle. In 2021, Sage was 14 when school officials in Virginia sought to socially transition her to a new gender, treating her as a boy and hiding it from her parents. Hard to believe, isn’t it? Before long, a confused Sage ran away from home.

“After she was found in a horrific situation in Maryland, a left-wing judge refused to return Sage to her parents because they did not immediately state that their daughter was their son. Sage was thrown into an all-boys state home and suffered terribly for a long time. But today, all of that is behind them because Sage is a proud and wonderful young woman with a full ride scholarship to Liberty University.

“Sage and Michelle, please stand up. And thank you for your great bravery and who can believe that we’re even speaking about things like this. Fifteen years ago, if somebody was up here and said that, they’d say, what’s wrong with him? But now we have to say it because it’s going on all over, numerous states, without even telling the parents.

“But surely, we can all agree no state can be allowed to rip children from their parents’ arms and transition them to a new gender against the parents’ will. Who would believe that we’ve been talking about that? We must ban it and we must ban it immediately. Look, nobody stands up. These people are crazy. I’m telling you, they’re crazy.”

The story, presented as encapsulation of a national crisis, became the foundation for Trump’s renewed call to ban gender-affirming care. LGBTQ advocates — and those familiar with Blair’s story — argue that the situation was far more complex than described and that using a single anecdote to justify sweeping federal restrictions places transgender people, particularly youth, at greater risk.

Equality Virginia said the president’s remarks were part of a broader effort to strip transgender Americans of access to care. In a statement to the Blade, the group said:

“Tonight, the president is choosing to double down on efforts to disrupt access to evidence-based, lifesaving care.

“Rather than allowing families and doctors to navigate deeply personal medical decisions free from federal interference — or allowing schools to respond with nuance and compassion without putting marginalized children at risk — the president is instead advocating for reckless, one-size-fits-all political control.

“At a time when Virginians are worried about rising costs, economic uncertainty, and aggressive immigration enforcement actions disrupting communities and families, attacking transgender young people is a blatant political distraction from the real challenges facing our nation. Virginia families and health care providers do not need Donald Trump telling them what care they do or do not need.”

For many in the LGBTQ community, the rhetoric inside the chamber echoed actions already taken by the administration.

Earlier this month, the Pride flag was removed from the Stonewall National Monument under a National Park Service directive that came from the top. Community members returned to the site, raised the flag again, and filed suit, arguing the removal violated federal law. To advocates, the move was symbolic — a signal that even the legacy of LGBTQ resistance was not immune.

Immigration and fear

Immigration dominated both events as well.

Inside the chamber, Trump boasted about the hundreds of thousands of immigrants detained in makeshift facilities. Outside, Democratic lawmakers described those same facilities as concentration camps and detailed what they characterized as the human toll of the administration’s enforcement policies.

Sen. Ed Markey (D-Mass.), speaking to the crowd, painted a grim picture of communities living in fear:

“People are vanishing into thin air. Quiet mornings are punctuated by jarring violence. Students are assaulted by ICE agents sitting outside the high school, hard working residents are torn from their vehicles in front of their children. Families, hopelessly search for signs of their loved ones who have stopped answering their phones, stop replying to text… This is un-American, it is illegal, it is unconstitutional, and the people are going to rise up and fight for Gladys Vega and all of those poor people who today need to know that the people’s State of the Union is the beginning of a long fight that is going to result in the end of Republican control of the House of Representatives and the Senate in the United States of America in 2026.”

Speakers emphasized that LGBTQ immigrants are often especially vulnerable — fleeing persecution abroad only to face detention and uncertainty in the United States. For them, the immigration crackdown and the attacks on transgender health care are not separate battles but intertwined fronts in a broader cultural and political war.

Queer leadership

Rep. Robert Garcia (D-Calif.) speaks at the People’s State of the Union on the Mall on Feb. 24. (Photo by Andrei Nasonov)

After delivering remarks alongside Robert Garcia, Kelley Robinson, president of the Human Rights Campaign, took the stage and transformed the freezing crowd’s anger into resolve.

Garcia later told the Blade that visibility matters in moments like this — especially when LGBTQ rights are under direct attack.

“We should be crystal clear about right now what is happening in our country,” Garcia said. “We have a president who is leading the single largest government cover up in modern history, we have the single largest sex trafficking ring in modern history right now being covered up by Donald Trump and Pam Bondi In the Department of Justice. Why are we protecting powerful, wealthy men who have abused and raped women and children in this country? Why is our government protecting these men at this very moment? In my place at the Capitol is a woman named Annie farmer. Annie and her sister Maria, both endured horrific abuse by Jeffrey Epstein and Ghislaine Maxwell. As we move forward in this investigation, always center the survivors; we are going to get justice for the survivors. And Donald Trump may call this investigation a hoax. He may try to deflect our work, but our message to him is very clear that our investigation is just getting started, and we will we will get justice for these survivors.”

He told the Blade afterwards that having queer leaders front and center is itself an act of resistance.

“I obviously was very honored to speak with Kelley,” the California representative said. Kelley is doing a great job…it’s important that there are queer voices, trans voices, gay voices, in protest, and I think she’s a great example of that. It’s important to remind the country that the rights of our community continue to be attacked, and then we’ve got to stand up. Got to stand up for this as well.”

Robinson echoed that call, urging LGBTQ Americans — especially young people — not to lose hope despite the administration’s escalating rhetoric.

“There are hundreds of thousands of people that are standing up for you every single day that will not relent and will not give an inch until every member of our community is protected, especially our kids, especially our trans and queer kids. I just hope that the power of millions of voices drowns out that one loud one, because that’s really what I want folks to see at HRC. We’ve got 3.6 million members that are mobilizing to support our community every single day, 75 million equality voters, people that decide who they’re going to vote for based on issues related to our community. Our job is to make sure that all those people stand up so that those kids can see us and hear our voices, because we’re going to be what stands in the way.”

A boycott — and a warning

The list of Democratic lawmakers who boycotted the State of the Union included Sens. Ruben Gallego, Ed Markey, Jeff Merkley, Chris Murphy, Adam Schiff, Tina Smith, and Chris Van Hollen, along with dozens of House members.

For those gathered outside — and for viewers watching the livestream hosted by MoveOn — the counter-programming was not merely symbolic. It was a warning.

While the president spoke of strength and success inside the chamber, LGBTQ Americans — particularly transgender youth — were once again cast as political targets. And outside the Capitol, lawmakers and advocates made clear that the fight over their rights is far from over.

(Washington Blade photo by Michael Key)
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U.S. Military/Pentagon

4th Circuit rules against discharged service members with HIV

Judges overturned lower court ruling

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The Pentagon (Photo by icholakov/Bigstock)

A federal appeals court on Wednesday reversed a lower court ruling that struck down the Pentagon’s ban on people with HIV enlisting in the military.

The conservative three-judge panel on the 4th U.S. Circuit Court of Appeals overturned a 2024 ruling that had declared the Defense Department and Army policies barring all people living with HIV from military service unconstitutional.

The 4th Circuit, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia, held that the military has a “rational basis” for maintaining medical standards that categorically exclude people living with HIV from enlisting, even those with undetectable viral loads — meaning their viral levels are so low that they cannot transmit the virus and can perform all duties without health limitations.

This decision could have implications for other federal circuits dealing with HIV discrimination cases, as well as for nationwide military policy.

The case, Wilkins v. Hegseth, was filed in November 2022 by Lambda Legal and other HIV advocacy groups on behalf of three individual plaintiffs who could not enlist or re-enlist based on their HIV status, as well as the organizational plaintiff Minority Veterans of America.

The plaintiffs include a transgender woman who was honorably discharged from the Army for being HIV-positive, a gay man who was in the Georgia National Guard but cannot join the Army, and a cisgender woman who cannot enlist in the Army because she has HIV, along with the advocacy organization Minority Veterans of America.

Isaiah Wilkins, the gay man, was separated from the Army Reserves and disenrolled from the U.S. Military Academy Preparatory School after testing positive for HIV. His legal counsel argued that the military’s policy violates his equal protection rights under the Fifth Amendment’s Due Process Clause.

In August 2024, a U.S. District Court sided with Wilkins, forcing the military to remove the policy barring all people living with HIV from joining the U.S. Armed Services. The court cited that this policy — and ones like it that discriminate based on HIV status — are “irrational, arbitrary, and capricious” and “contribute to the ongoing stigma surrounding HIV-positive individuals while actively hampering the military’s own recruitment goals.”

The Pentagon appealed the decision, seeking to reinstate the ban, and succeeded with Wednesday’s court ruling.

Judge Paul V. Niemeyer, one of the three-judge panel nominated to the 4th Circuit by President George H. W. Bush, wrote in his judicial opinion that the military is “a specialized society separate from civilian society,” and that the military’s “professional judgments in this case [are] reasonably related to its military mission,” and thus “we conclude that the plaintiffs’ claims fail as a matter of law.”

“We are deeply disappointed that the 4th Circuit has chosen to uphold discrimination over medical reality,” said Gregory Nevins, senior counsel and employment fairness project director for Lambda Legal. “Modern science has unequivocally shown that HIV is a chronic, treatable condition. People with undetectable viral loads can deploy anywhere, perform all duties without limitation, and pose no transmission risk to others. This ruling ignores decades of medical advancement and the proven ability of people living with HIV to serve with distinction.”

“As both the 4th Circuit and the district court previously held, deference to the military does not extend to irrational decision-making,” said Scott Schoettes, who argued the case on appeal. “Today, servicemembers living with HIV are performing all kinds of roles in the military and are fully deployable into combat. Denying others the opportunity to join their ranks is just as irrational as the military’s former policy.”

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New York

Lawsuit to restore Stonewall Pride flag filed

Lambda Legal, Washington Litigation Group brought case in federal court

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The Pride flag in question that once flew at the Stonewall National Monument. (Photo from National Park Service)

Lambda Legal and Washington Litigation Group filed a lawsuit on Tuesday, challenging the Trump-Vance administration’s removal of the Pride flag from the Stonewall National Monument in New York earlier this month.

The suit, filed in the U.S. District Court for the Southern District of New York, asks the court to rule the removal of the Pride flag at the Stonewall National Monument is unconstitutional under the Administrative Procedures Act — and demands it be restored.

The National Park Service issued a memorandum on Jan. 21 restricting the flags that are allowed to fly at National Parks. The directive was signed by Trump-appointed National Park Service Acting Director Jessica Bowron.

“Current Department of the Interior policy provides that the National Park Service may only fly the U.S. flag, Department of the Interior flags, and the Prisoner of War/Missing in Action flag on flagpoles and public display points,” the letter from the National Park Service reads. “The policy allows limited exceptions, permitting non-agency flags when they serve an official purpose.”

That “official purpose” is the grounds on which Lambda Legal and the Washington Litigation Group are hoping a judge will agree with them — that the Pride flag at the Stonewall National Monument, the birthplace of LGBTQ rights movement in the U.S., is justified to fly there.

The plaintiffs include the Gilbert Baker Foundation, Charles Beal, Village Preservation, and Equality New York.

The defendants include Interior Secretary Doug Burgum; Bowron; and Amy Sebring, the Superintendent of Manhattan Sites for the National Park Service.

“The government’s decision is deeply disturbing and is just the latest example of the Trump administration targeting the LGBTQ+ community. The Park Service’s policies permit flying flags that provide historical context at monuments,” said Alexander Kristofcak, a lawyer with the Washington Litigation Group, which is lead counsel for plaintiffs. “That is precisely what the Pride flag does. It provides important context for a monument that honors a watershed moment in LGBTQ+ history. At best, the government misread its regulations. At worst, the government singled out the LGBTQ+ community. Either way, its actions are unlawful.”

“Stonewall is the birthplace of the modern LGBTQ+ rights movement,” said Beal, the president of the Gilbert Baker Foundation. The foundation’s mission is to protect and extend the legacy of Gilbert Baker, the creator of the Pride flag.

“The Pride flag is recognized globally as a symbol of hope and liberation for the LGBTQ+ community, whose efforts and resistance define this monument. Removing it would, in fact, erase its history and the voices Stonewall honors,” Beal added.

The APA was first enacted in 1946 following President Franklin D. Roosevelt’s creation of multiple new government agencies under the New Deal. As these agencies began to find their footing, Congress grew increasingly worried that the expanding powers these autonomous federal agencies possessed might grow too large without regulation.

The 79th Congress passed legislation to minimize the scope of these new agencies — and to give them guardrails for their work. In the APA, there are four outlined goals: 1) to require agencies to keep the public informed of their organization, procedures, and rules; 2) to provide for public participation in the rule-making process, for instance through public commenting; 3) to establish uniform standards for the conduct of formal rule-making and adjudication; and 4) to define the scope of judicial review.

In layman’s terms, the APA was designed “to avoid dictatorship and central planning,” as George Shepherd wrote in the Northwestern Law Review in 1996, explaining its function.

Lambda Legal and the Washington Litigation Group are arguing that not only is the flag justified to fly at the Stonewall National Monument, making the directive obsolete, but also that the National Park Service violated the APA by bypassing the second element outlined in the law.

“The Pride flag at the Stonewall National Monument honors the history of the fight for LGBTQ+ liberation. It is an integral part of the story this site was created to tell,” said Lambda Legal Chief Legal Advocacy Officer Douglas F. Curtis in a statement. “Its removal continues the Trump administration’s disregard for what the law actually requires in their endless campaign to target our community for erasure and we will not let it stand.”

The Washington Blade reached out to the NPS for comment, and received no response.

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