National
‘Don’t Ask’ could get ‘more humane’ guidelines this week
Service members threatened with potential discharge under “Don’t Ask, Don’t Tell” may
Defense Secretary Robert Gates (DC Agenda photo by Michael Key).
Service members threatened with potential discharge under “Don’t Ask, Don’t Tell” may soon be able to breathe easier after Pentagon lawyers complete their assessment on finding a “more humane” way to implement the law.
The assessment, due for completion this week, is taking place because Defense Secretary Robert Gates tasked the Pentagon’s Office of the General Counsel to review the regulations for “Don’t Ask, Don’t Tell” to see if the Department of Defense could implement the law in a fairer manner.
After asking last year for a preliminary assessment for what he called a potentially “more humane” policy, Gates announced before the Senate Armed Services Committee on Feb. 2 the review would be complete in 45 days. Earlier this month, Jeh Johnson, the Pentagon’s top lawyer, said during congressional testimony the assessment would be finished on or around March 19.
But what these final changes will entail is unknown because information about them isn’t public. The Defense Department didn’t respond to DC Agenda’s request to comment on the new regulations.
Also unknown is the timing for when the Pentagon will unveil these changes, as well as how long it would take for Gates to implement them once he receives the recommendations.
Repeal advocates say they’re unsure what Pentagon lawyers will ultimately produce, but have issued recommendations for changing the application of “Don’t Ask, Don’t Tell” under the current statute.
Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said his organization provided the Defense Department in July with a list of possible changes that could be made.
Among these changes are mandating evidence when a possible violation of “Don’t Ask, Don’t Tell” comes from a fellow service member and not a civilian; eliminating anonymous tips as the basis for the start of an inquiry; and requiring that alleged homosexual conduct on which any discharge is based occurs after a service member joined the armed forces.
“And actually, Secretary Gates and Adm. Mullen referred to all six of those at the Feb. 2 hearing, but we don’t have any concrete intelligence as to what Mr. Johnson may or may not be recommending to the secretary,” Sarvis said.
During that testimony, Gates raised some possibilities on what the changes could entail. He said the Pentagon could raise the level of the officer who initiates or conducts inquiries, as well as what constitutes a credible source to start an investigation.
Gates also told lawmakers the Defense Department can “reduce the instances” in which a service member is outed by a third party under “Don’t Ask, Don’t Tell.”
Alex Nicholson, executive director of Servicemembers United, said the actual benefit to gay soldiers of eliminating third-party outings is unknown because reliable information on why service members are expelled isn’t available.
“Anybody can sort of venture to guess based on their experience and anecdotal evidence,” he said. “But it’s really hard to do that with authority or credibility because we don’t have any statistics on how many discharges are the result of self-initiated outings, how many are the results of third-party outings and how many are the result of behavior being discovered.”
Aaron Belkin, director of the Palm Center, a think-tank on gays in the military at the University of California, Santa Barbara, said if such changes are enacted, it would eliminate important problems, but still wouldn’t address other issues.
“One is you’re not going to be able to eliminate all discharges,” he said. “Two, as long as the law is on the books, you’ll still have the sword hanging over gay people’s heads, and it’s that sword that makes it difficult for them to do their job.”
Belkin said new regulations also won’t change how “Don’t Ask, Don’t Tell” damages the military “symbolically and reputationally” simply by being on the books.
During the Feb. 2 hearing, Gates said as part of these changes the Pentagon would “devise new rules and procedures” in light of the 2008 Ninth Court of Appeals ruling in Witt v. Air Force, which challenged the constitutionality of “Don’t Ask, Don’t Tell.”
The decision, which was construed to only apply to the plaintiff, determined the Pentagon needed to prove lesbian Maj. Margaret Witt’s sexual orientation was a detriment to unit cohesion in order to discharge her from the Air Force.
Applying the heightened Witt standard on a national basis was one of SLDN’s recommendations for a change under current law. Sarvis said such an application would help the Defense Department “create uniformity” in all “Don’t Ask, Don’t Tell” discharge cases.
But Belkin said he doesn’t think the Pentagon would apply the Witt standard on a national basis because it would be too big of a change.
“I would doubt that the Defense Department would take a judicial ruling that applies to one circuit and use regulation to expand its scope to the whole military,” he said. “I think that’s too big of a step for a regulatory tweak.”
Whatever changes the Pentagon makes, advocates maintain legislative repeal of “Don’t Ask, Don’t Tell” is the only way to properly address the law.
If the Pentagon implements the changes SLDN recommended, Sarvis said it would “go a long ways,” but “wouldn’t diminish the need for Congress to repeal ‘Don’t Ask, Don’t Tell.’”
Sarvis said legislative repeal is particularly needed so any conservative administration following President Obama couldn’t reverse the changes made under the existing statute.
“The next secretary and a new administration could come along and make revisions that he or she may feel they have authority for under the current statute,” he said. “That’s why I go back to changes to the regulations are not a substitute for repealing the statute.”
Wyoming
U.S. attorney nominee confirmed despite anti-LGBTQ history, no trial experience
Nine felony grand jury indictments tied to Darin Smith dismissed last week
Republicans confirmed Darin Smith as U.S. Attorney for the District of Wyoming on Monday, regardless of his history as interim U.S. Attorney for Wyoming and a state senator.
While serving as interim U.S. Attorney for Wyoming — after being appointed by President Donald Trump last July despite never trying a case outside of his time as a law student intern — former state Sen. Darin Smith likely prejudiced jurors during grand jury proceedings.
Nine felony grand jury indictments tied to Smith’s tenure were dismissed last week.
Judges dismissed felony indictments against Cheyenne Swett, Richard Allen, Michael Scott Hopper, Brian Joseph Johnson, Dennison Jay Antelope, Matthew Christopher Jacoby, Matthew Miller Jr., Wolf Elkins Duran, and Jose Benito Ocon. The now-dismissed charges included felony firearm possession, drug distribution, and possession of child pornography, among other allegations.
Smith allegedly told the grand jury that the defendants were “bad guys,” described them as “murderers,” and said deliberations “won’t take long.”
Even the U.S. Attorney’s Office for the District of Wyoming acknowledged that Smith’s comments were “ill-advised.”
Smith has a history of aligning with Trump over the Constitution and supporting anti-LGBTQ legislation.
In 2025, Smith co-sponsored House Bill 0194, titled “Obscenity amendments,” which, among other provisions, would have criminalized drag shows. The bill also would have repealed exemptions for public and school librarians from the crime of “promoting obscenity” to minors. The wording of the bill was so vague that Republican state Rep. Lee Filer said, “We will end up having to arrest somebody for allowing a child to read the Holy Bible.”
Smith also co-sponsored SF0062, a bill requiring public school students to use restrooms, sex-designated changing facilities, and sleeping quarters that align with their sex assigned at birth. In March 2025, the Wyoming governor signed the bill into law, along with its House companion.
He also attended the Jan. 6 Capitol riot alongside thousands of other Trump supporters.
“Smith was on the Capitol grounds on Jan. 6 … and made the reprehensible claim … that the hundreds of Capitol Police officers who risked their lives that day were guilty of ‘massive incompetence.’ Smith blames the police for what happened on Jan. 6. Without evidence, he claimed that rioters who breached the Capitol were victims of entrapment,” U.S. Sen. Dick Durbin (D-Ill.) said. “Moreover, Smith is not remotely qualified to be a U.S. Attorney. He’s going to be in the package — take it or leave it. Prior to becoming the interim U.S. Attorney, he had no courtroom or litigation experience whatsoever. None. And Smith’s lack of experience has had real-world consequences.”
Prior to his work in the Wyoming state legislature, Smith worked as Director of Planned Giving for the Family Research Council, an organization that describes homosexuality as “harmful” to society with “negative physical and psychological health effects.”
The organization also believes that sexual orientation “should [not] be included as a protected category in nondiscrimination laws or policies, as it is not comparable to inborn, immutable characteristics such as race or sex.”
During questioning before the U.S. Senate, he denied that his work with the organization shows he has loss of impartiality when it comes to matters of LGBTQ rights.
Also questioning, Smith was asked about a now-deleted Facebook post in which he appeared to express support for Kim Davis, the Kentucky county clerk who was found to be unconstitutional in her refusal to issue same-sex marriage licenses, despite Obergefell v. Hodges.
“Perhaps Hillary and Obama can share the cell with Kim Davis for refusing to uphold the Defense of Marriage Act,” the post said.
When asked why he posted it, Smith told Durbin: “I do not recall.”
Josh Sorbe, spokesperson for the Senate Judiciary Committee Democrats and Durbin, said:
“Anti-LGBTQ+ extremist Darin Smith has no business serving as a top law enforcement officer in any state — let alone a state with as much history of queer importance as Wyoming. He’s an unqualified insurrectionist with no experience litigating criminal or federal matters, and his bigotry puts into serious question his commitment to upholding the law for all Americans.”
Human Rights Campaign Vice President of Government Affairs David Stacy also condemned Smith’s confirmation to the U.S. Attorney’s office.
“The justice system in America is supposed to be about ensuring the law is applied fairly and equally. But Darin Smith has spent his career obsessed with making life worse for LGBTQ+ people, opposing marriage equality, cosponsoring state legislation targeting transgender youth, and smearing LGBTQ+ people in public statements,” Stacy said. “Just over two decades after Matthew Shepard was brutally murdered in that same state, Wyoming deserves better than tired anti-LGBTQ+ hate at the helm of federal law enforcement. The Senate should reject Darin Smith and demand a nominee who will put the people — and justice — first.”
Vermont
Vt. lawmaker equates transgender identity with bestiality
Vermont Democrats condemned comments, demanded apology
State Sen. Steven Heffernan (R-Addison) equated transgender people to bestiality on the Vermont Senate floor on May 15 while debating an animal cruelty bill.
Heffernan, who was elected in 2024 to the state Senate, constructed a scenario in which a trans person is indistinguishable from someone committing bestiality.
“In these crazy times, what happens if the individual identifies as an animal having intercourse with an animal? How is the courts going to handle that?” the former member of the Vermont Air National Guard said while debating House Bill 578. “Being that we voted through Prop Four, and if it does make it through this state, and I have a gender identity that I identify as a dog and had sex with my dog, is this law going to affect me?”
State Sen. Tanya Vyhovsky (D-Chittenden Central), who presented H. 578 responded professionally.
“The bill that we are putting forward in the current law is quite clear that any act between a person and an animal that involves contact with the mouth, sex organ, or anus of the person, and the mouth, sex organ, or anus of the animal, without a bona fide veterinary purpose, will be a crime.”
In the video, Heffernan continued to ask inappropriate questions — questions that Vyhovsky answered.
“If I identify as that animal, will this be able to … It says a person. I’m not a person. I’m identifying as this animal I’m having intercourse with,” he said. “We are identifying genders, of whatever gender we decide we want to be, and I think I like this bill. I’m going to vote for this bill, but I want to make this chamber aware of what’s coming.”
Vyhovsky made a statement saying this was a planned move in an attempt to “other” trans Vermonters instead of protecting them.
“Senator Heffernan knew exactly what he was doing,” said Vyhovsky. “Sen. Heffernan is using the same dehumanizing playbook that has been used against LGBTQ+ people for generations — the false, ugly suggestion that queer and trans identity is synonymous with deviance and harm. It was wrong then and it is wrong now.”
This derogatory action at the expense of trans people appears to be part of a pattern of behavior from Heffernan in his official capacity.
In March, Heffernan left the floor right before lawmakers voted on Proposal 4, conveniently missing the bill vote. PR 4, if passed by the state’s voters in the fall, would amend the state constitution to enshrine protections against unjust treatment, including discrimination based on a “person’s race, ethnicity, sex, religion, disability, sexual orientation, gender identity, gender expression, or national origin.”
Heffernan told VTDigger at the time that he left because his stomach was feeling “agitated” and he needed to use the restroom. He said he had not made up his mind on how to vote on the amendment, largely because he’d heard from constituents urging him both to vote for and against it.
“My pizza hit at the right time, I guess,” he said, calling the timing “convenient.”
Despite his leaving — and being the only lawmaker to do so — the state Senate voted to pass it 29-0, with Heffernan marked “absent.” This came after the state House of Representatives voted to pass it 128-14 last week.
Vermont Senate Democrats condemned the statement and used the opportunity to emphasize the need for the state to pass PR 4 on Nov. 4.
“In the wake of Sen. Heffernan’s comments, the stakes of this election couldn’t be more clear,” the statement provided to the Washington Blade read. “Transgender and nonbinary Vermonters are our neighbors, our friends, and our family members. On Friday, Sen. Heffernan used his platform as an elected official representing the people of Vermont to dehumanize them. Senate Democrats will never stop fighting for dignity for all Vermonters. We demand Senator Heffernan apologize to those he has harmed with his words and actions.”
State Sen. Kesha Ram Hinsdale (D-Chittenden Southeast), speaking in her capacity as chair of the Senate Ethics Panel, responded to similar transphobic comments made by President Donald Trump in a White House counterterrorism strategy document last week, in which he said those with “extreme transgender ideologies” should know “we will find you and we will kill you,” stating:
“A lot of people are living in fear in this country because of what somebody with the power of the pen and the power of the military is saying every day,” Hinsdale said. “Just because [speech] is protected does not mean it is worthy of this institution, and does not mean it is worthy of the office we hold and the power that we wield in the lives of Vermonters.”
The Blade reached out to Heffernan for comment but has not heard back.
Former U.S. Rep. Barney Frank (D-Mass.) died on Tuesday. He was 86.
The Massachusetts Democrat served in the U.S. House of Representatives from 1981-2013. Frank in 1987 became the first member of Congress to voluntarily come out as gay.
The Washington Blade earlier this month interviewed Frank after he entered hospice care at his Ogunquit, Maine, home where he lived with his husband, Jim Ready, since 2013. The former congressman, among other things, talked about his new book, “The Hard Path to Unity: Why We Must Reform the Left to Rescue Democracy.”
The book is scheduled for release on Sept. 15.
NBC Boston reported Frank’s sister, Ann Lewis, and a close family friend confirmed his death.
The Blade will update this article.
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