National
Gay sex remains a crime under military law
‘Don’t Ask, Don’t Tell’ repeal leaves sodomy ban unchanged
Aubrey Sarvis, executive director of SLDN, said his group’s top priority this year is to secure the certification by President Obama and military leaders for completing repeal of ‘Don’t Ask, Don’t Tell.’ (Washington Blade file photo by Michael Key)
Much of the nation was riveted over the drama surrounding the congressional vote last month to repeal the “Don’t Ask, Don’t Tell” law barring gays from serving openly in the military.
But in a little-noticed development, Capitol Hill observers say Congress is in no mood to take a follow-up action recommended by Pentagon officials — the repeal of a longstanding military law that classifies consensual sodomy among both gay and straight service members as a crime.
Gay rights attorneys and experts in military law say the sodomy law provision known as Article 125 of the Uniform Code of Military Justice has been rarely enforced in recent years in cases where sexual activity has been consensual and “fraternization” between officers and lower ranking members has not be a factor.
And the experts say a 2004 decision known as U.S. v. Marcum by the U.S. Court of Appeals for the Armed Services placed limits on the enforcement of Article 125 based on a U.S. Supreme Court decision one year earlier that declared state sodomy laws unconstitutional.
Yet because the military court did not overturn Article 125, its characterization of gay sex as criminal acts punishable by court martial will remain on the books until Congress repeals the statute, leaving in place what some activists say is an unfair stigma associated with gays and lesbians in the military.
Gay rights attorneys have said the Supreme Court could overturn the military sodomy law by affirming that the Lawrence v. Texas decision fully covers the military. But it could take years before a new military case reaches the high court.
Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, which has led efforts to repeal “Don’t Ask, Don’t Tell,” said his group’s top priority this year is to secure the certification by President Obama and military leaders for completing repeal.
The repeal law passed by Congress and signed by President Obama in December doesn’t allow full repeal to take effect until the president, the Secretary of Defense and chair of the military’s Joint Chiefs of Staff determine troops and commanders are fully prepared for the change.
“So I would say no, that our top priority for this Congress is not the repeal of Article 125,” Sarvis told the Blade. “Do I think it should be repealed? Yes. Has SLDN been working over the last several years for repeal? Yes.”
Among those agreeing with Sarvis’ assessment is gay U.S. Rep. Barney Frank (D-Mass.).
“I’m skeptical and frankly at this point I don’t think it’s a good idea to press ahead with that one,” Frank said Tuesday, noting that gay rights opponents would likely use a debate on sodomy repeal in the military to push “hidden agendas.”
Sarvis summarized the views of other LGBT advocates when he said the Republican-controlled House would almost certainly refuse to even consider a bill to repeal Article 125. He said the need for pushing other LGBT-related issues in the military and other areas outweighs expending resources on Article 125.
Although Article 125 applies to gays and straights alike, gay rights advocates have said military authorities used it to target gay and lesbian service members in the past, especially in the years prior to “Don’t Ask, Don’t Tell.” If it remains on the books, some wonder whether a future president less supportive of LGBT rights might reinstate its full enforcement.
Longtime D.C. gay rights leader Frank Kameny, who assisted gay service members in the 1970s and 1980s, long before SLDN and other LGBT rights groups existed, said military investigators waged what he and other activists called “witch hunts” to identify and discharge gays on grounds that they violated Article 125.
Under Article 125, “any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense,” the article states.
Under the 2008 version of the military’s official manual for courts martial, unnatural carnal copulation under Article 125 is defined as a person taking into his or her “mouth or anus the sexual organ of another person or of an animal…or to have carnal copulation in any opening of the body, except the sexual parts, with another person.”
Sarvis and Aaron Belkin, director of the Palm Center, an arm of the University of Southern California that studies issues related to gays in the military, each said they know of almost no cases in recent times where service members, gay or straight, have been prosecuted under Article 125 for engaging in consensual sex in private.
The two noted that nearly all Article 125 prosecutions in recent years have involved additional infractions and violations, such as allegations of rape or sexual harassment or of sexual activity between an officer and a lower-ranking enlisted person.
The latter category of cases, known as fraternization, is considered a strong breach of military rules because sexual relations between an officer and a subordinate are believed to harm the system of order and discipline deemed important in the military.
Bridget Wilson, a San Diego attorney in private practice who has represented gay and lesbian service members for more than 20 years, said she agrees with Sarvis and Belkin’s assessment about the infrequency of Article 125 enforcement in recent years for consensual sex.
But Wilson said the pressure that “Don’t Ask, Don’t Tell” has placed on gay and lesbian service members to conceal their sexual orientation during the 17 years it has been in effect has led to many cases where service members “fabricate” a non-consenting allegation to protect themselves from being thrown out of the service.
If a service member ensnared in an investigation over alleged acts of sodomy admitted to having consented to such acts, Wilson said, it was equivalent to an admission to being gay and grounds for an automatic discharge under “Don’t Ask, Don’t Tell.”
“What I do see is false accusations of assaults,” she said in describing some cases faced by her clients. “You get a lot of, ‘I was so drunk last night I don’t remember a thing’ after he gets busted for having sex with another man.”
According to Wilson, some military prosecutors have interpreted impairment on the part of a service member due to alcohol consumption as a sign that the service member could not give true “consent” to a sexual act.
“So the problem with ‘I was so drunk that I don’t remember a thing’ is it could convert from [consensual] sodomy into forced sodomy with very serious consequences in the criminal courts,” she said.
With the repeal of “Don’t Ask, Don’t Tell,” Wilson said she is hopeful that the perceived need by frightened service members to fabricate a non-consenting sex allegation to avoid being discharged from the service will become a thing of the past.
She said military authorities notoriously handled similar cases with straight couples engaging in alleged sodomy differently because there is no “straight” version of “Don’t Ask, Don’t Tell.”
“They might find themselves punished by losing a stripe or losing leave time—that sort of thing,” Wilson said. “For my same-sex clients, before ‘Don’t Ask, Don’t Tell’ goes away, they’re out. They’re gone. And they’re probably facing administrative separation with an other-than-honorable discharge.”
In its widely publicized Nov. 30 report, the Pentagon’s Joint Service’s Committee consisting of top military leaders — which recommended the repeal of ‘Don’t Ask, Don’t Tell’ — also called on Congress to repeal Article 125.
The committee report points to both the U.S. v. Marcum decision, which limits the enforcement of Article 125, and the Lawrence v. Texas ruling that declared state sodomy laws unconstitutional as they pertain to consenting adults in the privacy of the home.
“In light of these decisions, we recommend that Article 125 be repealed or amended to the extent it prohibits consensual sodomy between adults, regardless of sexual orientation,” the report says.
“The other prohibitions considered punishable under Article 125, including forcible sodomy, sodomy with minors and sodomy that is demonstrated to be ‘service discrediting’ (i.e., in public or between a superior and subordinate), should remain on the books,” the report says.
Michael Cole-Schwartz, a spokesperson for the Human Rights Campaign, said HRC favors a prompt repeal by Congress of Article 125. He said the group also disagrees with the military court decision upholding Article 125 under some circumstances and feels the Supreme Court’s Lawrence decision, which overturned state sodomy laws, should also cover the military in its entirety.
“HRC expects that post-DADT repeal, Article 125 would only be used in circumstances involving non-consensual acts, so there should be no negative impact on gay and lesbian service members,” Cole-Schwartz said.
Former Army Lt. Dan Choi, who emerged as one of the nation’s most visible opponents of “Don’t Ask, Don’t Tell” after being discharged under the statute, said he recognizes that Congress is unlikely to repeal Article 125 any time soon. But he criticized SLDN and other LGBT groups for not being more aggressive in pushing for its repeal at the present time.
“Leaders [should] do what is important and difficult and lead,” he said.
Bryan Thomas, a spokesperson for Sen. Carl Levin (D-Mich.), chair of the Senate Armed Services Committee, said Senate Democratic leaders were reviewing the Pentagon report’s call for Congress to repeal Article 125. He said a Senate repeal measure would most likely be introduced as an amendment to the National Defense Authorization Bill, but he had no further details by press time on whether or when such a measure would be introduced.
“We expect the administration to submit a legislative proposal for repeal or revision of Article 125 of the UCMJ, and such a proposal would certainly be carefully considered by the committee,” Thomas said.
Spokespersons for Republican and Democratic leaders in the House and Republican leaders in the Senate could not be immediately reached.
National
National resources for trans and gender diverse communities
Amid attacks, help is available from wide range of organizations
The Trump administration has launched a series of executive orders and other initiatives restricting the rights of the transgender community since taking power in January, targeting military service, affirming healthcare, and participation in sports.
Though many executive orders are being challenged in court, it’s an uncertain time for a community that feels threatened. Despite the uncertainty, there are resources out there to help.
From legal assistance to mental health support, here’s a list of nonprofits and organizations dedicated to improving the everyday livelihood of trans and gender diverse people. These are mostly national organizations; there are many additional groups that work in local communities across the country. Some of these national groups will connect those in need of help to a local organization.
LEGAL HELP
President Trump issued an executive order declaring there are only two genders –– male and female –– which applies to legal documents and passports. The order doesn’t recognize the idea that one can transition their gender at birth to another gender.
Ash Lazarus Orr filed to renew his passport with a gender marker reflecting his identity. That was in January, and he still hasn’t received it. He refused to accept a passport without an accurate identification of who he is, so he filed a lawsuit with the ACLU in what is now known as Orr v. Trump.
Orr told the Washington Blade that not receiving his passport back has taken away his freedom of visiting family in Canada and receiving gender-affirming care from a trusted provider in Ireland.
The one thing getting him through this uncertain time is knowing who he’s fighting for –– the trans community, his loved ones, and himself.
“I’m trying to be that person that those younger parts of me needed growing up,” Orr said. Check out a couple of legal support organizations below:
Transgender Law Center
The Transgender Law Center (TLC) provides legal resources and assistance. TLC has a list –– called the Attorney Solidarity Network –– of attorneys that can provide advice or representation for trans people.
The organization also has a legal information help desk that answers questions regarding laws or policies impacting trans people.
Website: transgenderlawcenter.org
Phone: 510-587-9696
Email: [email protected]
Advocates For Trans Equality
With a variety of different programs tailored toward legal assistance and advocacy work, Advocates For Trans Equality’s reach is wide.
The non-profit offers the Name Change Project, which provides pro bono legal name change services to low-income trans, gender-non-conforming and nonbinary people by utilizing its partnerships with law firms and corporate law departments.
Advocates For Trans Equality also has departments and programs dedicated to increasing voter engagement, educating lawmakers on trans issues and offering litigation assistance to a small number of cases.
Website: transequality.org
Phone: 202-642-4542
General email: [email protected]
To contact a specific department or program, visit its website above.
ADVOCACY
Looking to take action and get involved? Act now.
American Civil Liberties Union
The ACLU is a national nonprofit organization that mobilizes local communities and advocates for national causes.
Getting involved is as easy as filling out letters to representatives or signing petitions. One live petition is to “defend trans freedom.”
You can also join its People Power platform, where you serve as a volunteer in your community to “advance civil liberties and civil rights for all.” ACLU has different chapters across the country, so visit its website for more information.
Website: aclu.org
Phone: 212-549-2500
MILITARY AND VETERANS
Trump signed an executive order in January banning transgender service members from serving, stating their identity “conflicts with a soldier’s commitment to an honorable, truthful and disciplined lifestyle, even in one’s personal life.”
Though the order has been legally challenged and struck down by a judge, U.S. Navy Lieutenant Rae Timberlake said it’s created an uncertain atmosphere for themself and other troops.
“All of the transgender service members I know have served with honor and integrity for many years…[and we’re] targeted for removal and not subject to any kind of review based on merit,” Timberlake, who joined the Navy at age 17, said. “There’s kind of just this cloud looming over our organizations and our units, because we know any day our transgender shipmates could no longer be on the team.”
But Timberlake’s message to any service member struggling because of the executive order was one of compassion and truth: “There’s no policy that can take away what you’ve accomplished and what you’ve done.”
Here are some organizations that support service members and veterans:
SPARTA Pride
SPARTA is a peer-support group composed of active duty, veteran and “future warrior” service members.
The group also engages in advocacy work and has helped change policies on gender neutral uniforms and reducing the time a trans service member would have to wait to return to their duties during their transition.
Contact SPARTA to learn more about joining its support network.
Website: spartapride.org
Email: [email protected]
Modern Military Association
Modern Military supports service members and veterans through advocacy, legal assistance and mental health support.
It tracks LGBTQ+ and HIV discrimination through reports made on its website, and offers guidance and advice to whoever submitted the report.
It also supports the mental health of LGBTQ+ veterans and their families through its Resilient Heroes Program. By signing up, you’ll receive virtual peer support and case management services with a mental health coordinator.
Website: modernmilitary.org
Phone: 202-328-3244
Email: [email protected]
CRISIS & MENTAL HEALTH SUPPORT
If you have a more urgent matter, or just need someone to listen, here are some organizations you can reach out to:
The Trevor Project
The Trevor Project offers 24/7 counseling services. Calling, texting or chatting is free and confidential, and you’ll get to speak with someone specialized in supporting LGBTQ youth.
The organization also focuses on public education by hosting online LGBTQ suicide prevention trainings. It advocates for policies and laws that contribute to supporting queer youth.
Website: thetrevorproject.org
Crisis hotline: 1-866-488-7386
General inquiry phone number: 212-695-8650
Trans Lifeline
Trans Lifeline is a hotline run and operated by trans people. Whether you’re questioning if you’re trans or are a trans person just wanting to talk, someone will be there to help. It’s free and confidential, and there won’t be any non-consensual active rescue, such as calling the emergency services.
The line is not 24/7, however. Check out its website for hours within your time zone.
Website: translifeline.org
Phone: 877-565-8860
Here are other organizations that offer support to the trans community:
TransFamilies (support): Support for families with a gender diverse child.
TransLatina Coalition (advocacy): Advocates for the specific needs of the transgender, gender expansive and intersex communities in the U.S.
TransAthlete (information): Provides informative resources about trans athletes.
Campaign for Southern Equality’s Trans Youth Emergency Project (healthcare support): A fund to help trans youth access lifesaving healthcare.
TransTech Social (economic empowerment): Dedicated to discovering and empowering the career-ready skills of LGBTQ+ people.
World Professional Association For Transgender Health (health): Resources, symposiums and research dedicated to improving transgender health.
Sylvia Rivera Law Project (legal): Legal programs and services for marginalized communities.
Gender Spectrum (support): Resources and support groups for trans youth and families.
The Okra Project (support): Creates and supports initiatives that provide resources for the Black Trans community.
The White House
White House does not ‘respond’ to reporters’ requests with pronouns included
Government workers were ordered not to self-identify their gender in emails
White House Press Secretary Karoline Leavitt and a senior advisor in the Department of Government Efficiency rejected requests from reporters who included their pronouns in the signature box of their emails, each telling different reporters at the New York Times that “as a matter of policy,” the Trump-Vance administration will decline to engage with members of the press on these grounds.
News of the correspondence between the journalists and the two senior officials was reported Tuesday by the Times, which also specified that when reached for comment, the White House declined to “directly say if their responses to the journalists represented a new formal policy of the White House press office, or when the practice had started.”
“Any reporter who chooses to put their preferred pronouns in their bio clearly does not care about biological reality or truth and therefore cannot be trusted to write an honest story,” Leavitt told the Times.
Department of Government Efficiency Senior Advisor Katie Miller responded, “I don’t respond to people who use pronouns in their signatures as it shows they ignore scientific realities and therefore ignore facts.”
Steven Cheung, the White House communications director, wrote in an email to the paper: “If The New York Times spent the same amount of time actually reporting the truth as they do being obsessed with pronouns, maybe they would be a half-decent publication.”
A reporter from Crooked media who got an email similar to those received by the Times reporters said, “I find it baffling that they care more about pronouns than giving journalists accurate information, but here we are.”
The practice of adding pronouns to asocial media bios or the signature box of outgoing emails has been a major sticking point for President Donald Trump’s second administration since Inauguration Day.
On day one, the White House issued an executive order stipulating that the federal government recognizes gender as a binary that is immutably linked to one’s birth sex, a definition excludes the existence of intersex and transgender individuals, notwithstanding the biological realities that natal sex characteristics do not always cleave neatly into male or female, nor do they always align with one’s gender identity .
On these grounds, the president issued another order that included a directive to the entire federal government workforce through the Office of Personnel Management: No pronouns in their emails.
As it became more commonplace in recent years to see emails with “she/her” or “he/him” next to the sender’s name, title, and organization, conservatives politicians and media figures often decried the trend as an effort to shoehorn woke ideas about gender (ideas they believe to be unscientific), or a workplace accommodation made only for the benefit of transgender people, or virtue-signaling on behalf of the LGBTQ left.
There are, however, any number of alternative explanations for why the practice caught on. For example, a cisgender woman may have a gender neutral name like Jordan and want to include “she/her” to avoid confusion.
A spokesman for the Times said: “Evading tough questions certainly runs counter to transparent engagement with free and independent press reporting. But refusing to answer a straightforward request to explain the administration’s policies because of the formatting of an email signature is both a concerning and baffling choice, especially from the highest press office in the U.S. government.”
U.S. Military/Pentagon
Air Force rescinds rule barring inclusion of preferred pronouns in email signatures
Conflict with language in military funding package may explain reversal
The U.S. Air Force has issued a “directive to cease the use of ‘preferred pronouns’ (he/him, she/her, or they/them) to identify one’s gender identity in professional communications,” according to a report published in the Hill on Wednesday.
The rule, which applies to both airmen and civilian employees, was first adopted on Feb. 4 pursuant to President Donald Trump’s anti-transgender executive order called, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”
Days after the administration’s issuance of that order on the first day of the president’s second term, the Office of Personnel Management instructed agencies across the whole of the federal government to remove pronouns from email signatures and enforce the policy barring employees from using them.
Additionally, on Jan. 27 Trump published an order barring trans people from joining the U.S. Armed Forces, indicating that those who are currently in serving would be separated from the military. The Pentagon is fending off legal challenges to the ban in federal courts.
Particularly given the extent of the new administration’s efforts to restrict the rights of trans Americans and push them out of public life, the Air Force’s reversal of the pronoun guidance was surprising.
According to reporting in Military.com, the move might have come because officials concluded the rule was in conflict with language in the military appropriations funding legislation passed by Congress in 2023.
The NDAA established that the defense secretary “may not require or prohibit a member of the armed forces or a civilian employee of the Department of Defense to identify the gender or personal pronouns of such member or employee in any official correspondence of the Department.”
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