News
Court rules against law barring gay couples from veterans benefits
Judge finds U.S. gov’t has no rational basis for withholding benefits from same-sex spouses
Tracey (left) & Maggie Cooper-Harris have sued to received veterans benefits that were denied under Title 38 (Blade file photo by Michael Key).
A federal district judge in California ruled on Thursday that enforcing Title 38 — the portion of U.S. code governing veterans benefits — to bar former troops in same-sex marriages from receiving spousal veterans benefits is unconstitutional.
U.S. District Judge Consuelo Marshall, a Carter appointee, grants summary judgment in favor of lesbian veteran plaintiff Tracey Cooper-Harris by determining the U.S. government lacks any rational basis in withholding these benefits. Marshall finds current law doesn’t advance gender equity or military purposes.
“Title 38 is not rationally related to the military’s commitment to caring for and providing for veterans benefits,” Marshall writes. “[T]he court permanently enjoins Defendants from relying on [Title 38] or Section 3 of [DOMA] to deny recognition of Plantiffs’ marriage recognized by the State of California.”
It wasn’t immediately clear Thursday night whether the ruling means the U.S. government is enjoined from blocking benefits for all gay married veterans or only the plaintiffs who filed suit in the case. However, the court declared the law unconstitutional, not just as applied to the plaintiffs.
Caren Short, staff attorney for the Southern Poverty Law Center, said Friday the decision applies “just to our clients Tracey and Maggie,” but believes the administration can implement the ruling on a nationwide basis.
“We’re hopeful that now that a federal court has declared these definition in Title 38 unconstitutional that the VA will be able take steps toward providing equal benefits now to everyone,” Short said.
Jon Davidson, legal director Lambda Legal, said whether the administration will apply the ruling only to plaintiffs or other gay veterans is yet to be seen.
“In most instances, DOJ takes the position that a district court ruling against a federal agency is not binding on the agency beyond the jurisdiction of the court issuing the ruling, but I do not know what DOJ will say here, if they do not appeal, as they may simply accede to the ruling on a nationwide basis,” Davidson said.
The Justice and Veterans Affairs departments didn’t immediately respond to a request to comment Friday morning on what their next steps will be as a result of the ruling.
The lawsuit, known as Cooper-Harris v. United States, was filed in February 2012 by the Southern Poverty Law Center on behalf of Tracey Cooper-Harris, a lesbian veteran of the Iraq and Afghanistan wars who was seeking veterans spousal benefits for her spouse, Maggie Cooper-Harris. Tracey was diagnosed with multiple sclerosis and later found it was connected to her service, but was unable to receive spousal disability benefits.
The Southern Poverty Law Center asked the court to overturn both Section 3 of the Defense of Marriage Act, which has since been overturned by the Supreme Court, and Title 38 with respect to its hold on spousal benefits for gay veterans on the basis that the laws violate due process under the Fifth Amendment.
In a statement provided by SPLC, Tracey Cooper-Harris expressed gratitude the court ruled in favor of granting veterans benefits that will benefit her and her spouse.
“Maggie and I have waited so long to receive the same benefits other married veterans and their spouses receive,” Tracey said. “We are overjoyed that the court has ended the federal government’s discrimination against gay and lesbian veterans and their spouses. Judge Marshall’s ruling confirms that the service of gay and lesbian veterans and the sacrifices of their spouses are valued equally in the eyes of the law.”
Even though the U.S. Supreme Court has struck down the Section 3 of DOMA, the U.S. government has still withheld veterans spousal benefits — such as disability and joint burial benefits — from veterans in same-sex marriages on the basis of Title 38. That law, which governs veterans benefits, defines spouse in opposite-sex terms independent of DOMA.
Just this week, the Washington Blade made public a letter from Secretary of Veterans Affairs Eric Shinseki stating that U.S. government is still withholding spousal benefits for veterans marriages. The letter says the department is still reviewing with the Justice Department whether the Obama administration can afford these benefits following the DOMA decision.
Stephen Peters, president of the LGBT group American Military Partners Association, commended the court for reaching the decision that Title 38 is unconstitutional.
“Title 38 clearly violated the constitutional rights of our military veteran families,” Peters said. “This decision sets our nation on a path to honoring and serving all of our veterans and their families, regardless of their sexual orientation.”
Doug NeJaime, who’s gay and law professor at University of California, Irvine, said the ruling is positive, but noted other statutes still exist barring veterans spousal benefits from flowing to same-sex couples.
“The ruling applies the reasoning of Windsor in a logical way and represents an important step forward on veterans benefits,” NeJaime said. “However, veterans benefits have traditionally not used a place of celebration rule, meaning that unlike in the general military context, same-sex couples would not automatically be eligible for benefits based on their marriage.”
It’s unclear how the case could proceed any further to higher court. U.S. Attorney General Eric Holder announced the Justice Department wouldn’t defend Title 38 against legal challenges that contest the law on the basis that it unfairly deprives same-sex couples of veterans benefits. The House Republican-led Bipartisan Legal Advisory Group, which had taken up defense of DOMA after the Obama administration stood down, withdrew as a party from the case in July.
SPLC’s Short she doesn’t believe anyone can appeal the case now that there are no opposing parties in the lawsuit.
“On the issue of Title 38’s constitutionality, it’s doesn’t appear that there will be anyone to appeal,” Short said. “The Department of Justice said that they also agreed that Title 38 is unconstitutional. They filed a brief in support of our motion for summary judgment, so it would be strange for them to appeal the ruling, which was essentially the outcome that they were advocating for. So on the issue of Title 38’s constitutionality, there isn’t likely to be an appeal.”
But Lambda’s Davidson said the Justice Department still may appeal the decision on the grounds that the federal district court in California doesn’t have jurisdiction to hear the case.
“While DOJ is not defending on the merits, it has been contesting whether the Title 38 challenge belongs in federal district court as opposed to the specialized administrative court that deals with VA benefit issues,” Davidson said. “The judge ruled against DOJ on that previously but and DOJ might appeal that issue at this point.”
Senegal
Senegalese lawmakers approve bill to further criminalize homosexuality
A dozen men arrested in February for ‘unnatural acts’
Senegalese lawmakers on Wednesday approved a bill that would further criminalize consensual same-sex sexual relations in the country.
The Associated Press notes the measure that Prime Minister Ousmane Sonko introduced in February would increase the penalty for anyone convicted of engaging in consensual same-sex sexual relations from one to five years in prison to five to 10 years. The AP further indicates the bill would prohibit the “promotion” or “financing” of homosexuality in the country.
The bill passed with near unanimous support. Only three of 135 MPs abstained.
President Bassirou Diomaye Faye is expected to sign the measure.
The National Assembly in 2021 rejected a bill that would have further criminalized homosexuality in Senegal.
Senegalese police last month arrested a dozen men and charged them with committing “unnatural acts.”
Malaysia
Malaysia blocks access to Grindr, other gay dating websites
Restrictions part of continued anti-LGBTQ crackdown
Malaysia has blocked access to Grindr, Blued, and other gay dating websites, and is now considering further steps to restrict their mobile application.
Communications Minister Fahmi Fadzil on Feb. 25 said the government is pursuing legal measures to curb the availability of LGBTQ dating apps on Google’s Play Store and Apple’s App Store.
Fadzil, in a written parliamentary reply, said the Malaysian Communications and Multimedia Commission has not received any requests to remove the mobile versions of Grindr and Blued from app stores, noting the challenges of regulating platforms owned by foreign companies.
“Control over applications on platforms such as Google Play and Apple Store is subject to regulations and policies set by the said platform providers, since both applications are owned by foreign companies operating outside of Malaysia,” Fadzil said. “This includes those that spread lewd or immoral content, exploitation, abuse, scams, exploiting children or threats towards public safety.”
Fadzil was responding to a question about whether the Malaysian Communications and Multimedia Commission had worked with app store providers to block downloads of such apps.
The Washington Blade reached out to Google and Apple multiple times for comment but did not receive a response.
Malaysia has stepped up digital restrictions targeting the LGBTQ community as part of a broader crackdown on what authorities describe as “deviant” or immoral content. Consensual same-sex sexual relations remain criminalized in the country under both civil and Sharia law.
Malaysia has proposed a Cyber Crime Bill that would expand the government’s legal powers to address the misuse of digital platforms, including the promotion of same-sex dating applications, Deputy Prime Minister Ahmad Zahid Hamidi said. The bill would replace the Computer Crimes Act of 1997.
“We are disappointed in the decision to block access to Grindr in Malaysia and believe that online platform regulation should be proportionate and consistent with international human rights law,” a Grindr spokesperson told the Blade in an email.
“At Grindr, our mission is to help make a world where the lives of our global community are free, equal, and just,” added the spokesperson. “For many of our users, Grindr is often the primary way for them to connect, express themselves, and discover the world around them. In addition to serving as an important source of information, Grindr is committed to advancing the health and well-being of the community around the world and through our social impact initiative, Grindr for Equality, we partner with hundreds of advocates, community-based organizations, and public health agencies to support the global LGBTQ+ community.”
Grindr, based in California, is popular around the world. Blued, a China-based app that BlueCity operates, is one of the world’s largest social networking and dating platforms for gay men.
Blued did not respond to the Blade’s request for comment.
Online platforms ‘critical for LGBTQ people’
Malaysian authorities in May 2023 raided Swatch stores at shopping malls across the country and confiscated more than 160 rainbow-colored watches from the company’s Pride collection, saying the designs carried “LGBT connotations.” The raids, which the Home Affairs Ministry carried out, were widely criticized by advocacy groups.
Police last June opened an investigation into a closed-door LGBTQ sexual health workshop.
Selangor police chief Hussein Omar Khan said authorities were examining the event under the Penal Code for allegedly causing “disharmony or ill will” on religious grounds, as well as under the Communications and Multimedia Act, a law frequently used to police online speech. Critics said the investigation reflected growing government overreach and warned against the criminalization of public health initiatives aimed at marginalized communities. Activists cited this case as another example of Prime Minister Anwar Ibrahim’s crackdown on LGBTQ rights.
The Home Affairs Ministry in November 2020 banned the book “Gay Is OK! A Christian Perspective,” written by Pastor Oyoung and published by Gerakbudaya in 2013, saying it was likely to be “prejudicial to public order, morality and the public interest.” The Kuala Lumpur High Court later overturned the ban and ordered the respondents — then-Home Affairs Minister Hamzah Zainudin and the Malaysian government — to pay costs of 5,000 Malaysian ringgit ($1,276.81.)
A 2014 Human Rights Watch report documented widespread discrimination and abuse against transgender women in the country.
The report found that trans people face arrests under laws that effectively criminalize “cross-dressing,” along with harassment and abuse by police and religious authorities. It also described systemic discrimination in employment, health care, and education, leaving many trans women marginalized and vulnerable to violence and exploitation.
Thilaga Sulathireh, a founding member of Justice for Sisters, a Malaysian trans rights group, said restrictions on LGBTQ people’s freedom of expression through censorship have been an ongoing trend in Malaysia over the past decade.
Sulathireh said there have been increasing calls to curb what critics describe as “LGBT normalization” in films, books, and social media, which activists link to what they say is a harmful and inaccurate perception that LGBTQ people are immoral. Sulathireh added Grindr had been blocked in Malaysia for several years and that, as of last weekend, the app was no longer available on Google Play and the Apple App Store. Sulathireh said Justice for Sisters views the move as a serious violation of LGBTQ people’s rights to nondiscrimination, dignity, privacy, and freedom of expression.
“The blocking of LGBTQ related apps is part of the on-going and increasing trend of state sponsored discrimination against LGBTQ people in Malaysia,” Sulathireh told the Blade in an email. “In late February, the deputy minister in the prime minister’s (Religious Affairs) Department announced that the government is opting to replace references to LGBT persons with the term “budaya songsang” (deviant culture) and encouraged others to do the same to avoid LGBT normalization in all spaces, including social media. At the same time, called on members of the public to immediately report ‘suspicious activities, events or content.’”
Sulathireh told the Blade a deputy minister recently outlined a range of government-led initiatives targeting LGBTQ people in Malaysia.
According to Sulathireh, these include so-called “spiritual guidance camps.” Sulathireh said some participants, including those who identify as “ex-LGBT” or part of the “hijrah” community, have been encouraged to act as peer educators to reach other LGBTQ people.
Additional initiatives the deputy minister listed include academic Islamic conferences, state-level sermons coordinated by the state Islamic councils, and mosque-level programs. Sulathireh told the Blade the government presented a paper to the Council of Rulers outlining what officials described as the negative implications of legal gender recognition. Sulathireh said authorities have also established a multiagency committee to address issues involving Muslim LGBTQ people, promoted what they call “psychospiritual therapy,” and worked with police and the Communications and Multimedia Commission to monitor the promotion of LGBTQ-related activities online.
“The blocking of these apps and websites severely impacts all areas of LGBTQ people’s lives,” said Sulathireh. “These platforms have proven critical for LGBTQ people to find support, communities, access life-saving resources, information and services, love and intimacy. I think being able to find love, intimacy and connections is critical for LGBTQ’s self-acceptance, self-worth, health, and well-being.”
“The blocking makes it even more challenging for people to connect safely online and offline,” added Sulathireh. “People will become more isolated and all of these have a severe impact on LGBTQ’s mental health and well-being, which is already poor.”
Sulathireh said Justice for Sisters research and observations indicate many LGBTQ people in Malaysia already experience social media and digital spaces as hostile environments. As a result, many limit their use of these platforms and adopt higher levels of self-censorship. Sulathireh added the recent bans targeting LGBTQ visibility on digital platforms are also unfolding alongside a broader policy push to restrict social media access for children under 16.
“The state sponsored LGBTQ discrimination over the years has resulted in increasing discrimination by non-state actors and anti-rights groups with impunity,” Sulathireh said. “This ban will further entrench the culture of impunity against LGBTQ people.”
Nalini Elumalai, senior Malaysia program officer at ARTICLE 19, an international freedom of expression organization, said the blocking of dating apps is not occurring in isolation but is happening under the guise of public morality, digital censorship, and the enforcement of laws that undermine the rights of LGBTQ individuals in Malaysia.
Elumalai noted that Deputy Religious Affairs Minister Marhamah Rosli recently urged the public to refrain from using the term “LGBT” and instead describe it as “deviant culture” in an effort to combat normalization and reduce LGBTQ-related content on social media. Elumalai said blocking Grindr and Blued represents an ongoing attack on the LGBTQ community, particularly their rights to freedom of expression, access to information, and to be treated equally before the law without discrimination — protections guaranteed under Articles 8 and 10 of Malaysia’s Federal Constitution.
“The blocking of LGBTQI+ dating platforms appears to reflect a broader pattern in Malaysia where LGBTQI+-related expression and activities face heightened scrutiny and repression, particularly when they become visible online,” said Elumalai in a statement to the Blade.
Elumalai noted JEJAKA, a community-based organization had to cancel their “Glamping with Pride” event that was to have taken place on Jan. 17-18 because of safety concerns after it received death threats on social media.
“Ongoing repression of LGBTQI+ expression will further entrench systemic discrimination against marginalized groups, normalise inequality, and perpetuate division and hostility among the people in Malaysia,” said Elumalai. “Further, when one group is punished or prevented from expressing themselves freely online, others, including various online platforms, may also self-censor out of fear that they too could face scrutiny or penalties, even for legitimate expressions.”
The Malaysian Communications and Multimedia Commission has not responded to the Blade’s request for comment.
Chile
Far-right Chilean President José Antonio Kast takes office
Former congressman opposes LGBTQ rights
Chilean President José Antonio Kast took office on Wednesday.
Kast — the far-right leader of the Republican Party who was a member of the country’s House of Deputies from 2002-2018 — defeated Jeannette Jara — a member of the Communist Party of Chile who was the former labor and social welfare minister in former President Gabriel Boric’s government — in last year’s presidential election.
The Chilean constitution prevented Boric from running for a second consecutive term.
The Washington Blade has previously reported Kast has expressed his opposition to gender-specific policies, comprehensive sex education, and reforms to Chile’s anti-discrimination laws. Kast has also publicly opposed the country’s marriage equality law that took effect on March 10, 2022, the day before Boric took office.
The Movement for Homosexual Integration and Liberation, a Chilean LGBTQ and intersex rights group known by the acronym Movilh, declared a “state of alert” after Kast’s election, “given this leader’s (Kast’s) public and political trajectory, characterized for decades by systematic opposition to laws and policies aimed at equality and nondiscrimination of LGBTIQ+ individuals.”
Argentine President Javier Milei, Deputy U.S. Secretary of State Christopher Landau, and Venezuelan opposition leader María Corina Machado are among those who attended Kast’s inauguration that took place in the Chilean Congress in Valparaíso.
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