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BREAKING: Obama, Pentagon certify ‘Don’t Ask, Don’t Tell’ repeal

Military’s gay ban will be off the books in 60 days

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President Obama and Pentagon leaders gave the green light on Friday to start the 60-day time period for when “Don’t Ask, Don’t Tell” will be off the books and openly gay Americans will be entirely free to serve in the U.S. military.

After consultation during a Friday meeting at the White House, Obama ā€” along with Defense Secretary Leon Panetta and Chairman of the Joint Chiefs of Staff Adm. Mike Mullen ā€” issued certification to Congress that the armed forces are ready for open service.

“Today, we have taken the final major step toward ending the discriminatory ā€˜Donā€™t Ask, Donā€™t Tellā€™ law that undermines our military readiness and violates American principles of fairness and equality,” Obama said in a statement. “In accordance with the legislation that I signed into law last December, I have certified and notified Congress that the requirements for repeal have been met.Ā  ā€˜Donā€™t Ask, Donā€™t Tellā€™ will end, once and for all, in 60 daysā€”on September 20, 2011.”

Under the repeal law signed in December, the military’s gay ban will be lifted once the president, the defense secretary and the chairman of the Joint Chiefs of Staff certify the armed forces are ready for open service. Consequently, now that repeal has been certified, “Don’t Ask, Don’t Tell” will be off the books on Sept. 20.

“I believe the U.S. armed forces are ready for the implementation of the repeal of Don’t Ask, Don’t Tell,ā€ Mullen said in a statement. ā€œI conveyed that opinion yesterday to the President and to the secretary of defense, and today we certified this to Congress.Ā My opinion is informed by close consultation with the service chiefs and the combatant commanders over the course of six months of thorough preparation and assessment, to include the training of a substantial majority of our troops.ā€

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said the “final countdown to repeal begins today” as a result of certification.

“Service members celebrate this historic announcement, and they are ready for this change,” Sarvis said. “Our nationā€™s top military leaders have testified that commanders see no significant challenges ahead, and now the president, Secretary Panetta, and Chairman Mullen have certified to Congress that the armed forces are prepared for the end of ā€˜Donā€™t Ask, Donā€™t Tell.'”

Alex Nicholson, executive director of Servicemembers United, said certification of repeal means gay service members can “breath a huge sigh of relief.”

“While we still must wait 60 days for this change to formally take effect and for the law to officially be off the books, this step is nothing short of historic,” Nicholson said.Ā “This is the final nail in the coffin for the discriminatory, outdated, and harmful ‘Don’t Ask, Don’t Tell’ law.”

Gay service members who had left the U.S. military because of “Don’t Ask, Don’t Tell” hailed certification for repeal as an important milestone.

Stacey Vasquez, a former Army recruiter who was discharged under “Don’t Ask, Don’t Tell” in 2003, said she finds it hard to believe that the long struggle to end the military’s gay ban is finally coming to an end.

“I think it’s hard for me to put into words because there have been so many steps for me,”Ā Vasquez said. “I went through a court battle for seven years and worked on repeal in my job for a year, and then I’ve lobbied Congress for nine years.”

She continued, “I don’t know if you’ve had one of those moments where you say, ‘Is it really done because you’ve had so many steps and you feel like you move forward and then you move back a step? I’m kind of thinking to myself, ‘Is it really done?'”

Still, Vasquez said she’s “happy” that certification has happened and plans to make an attempt to re-enlist in the Army after “Don’t Ask, Don’t Tell” is off the books.

Brian Fricke, a gay Iraq war veteran who left the Marine Corps in 2005 because of “Don’t Ask, Don’t Tell,” also said certification brings him a sense of relief. and vindication that he thinks is shared by other service members.

“For me, personally, there’s a sense of vindication,” he said. “When I left, I had a partner at the time and I was always afraid of being found out. I couldn’t relax when I was on my R&R away from work because I was fearful of that.

Additionally, Fricke said he thinks other service members will share his feelings following the formal lifting of “Don’t Ask, Don’t Tell.”

“I feel like a lot of the gay and lesbian troops are going to feel a lot of relief immediately, even if they’re not going to come out to people,” he said.Ā “They are going to be able to relax when they’re off duty and be able to go in public to the movies and hold hands and not have to worry about retribution.”

Fricke wasn’t discharged under “Don’t Ask, Don’t Tell,” but opted not to enlist in 2005 because of the burden of serving under the military’s gay ban. He said he doesn’t plan to return to the armed forces.

Although “Don’t Ask, Don’t Tell” will remain on the books until Sept. 20, discharges under the anti-gay law have already been halted. The Pentagon earlier this month put in place a moratorium on separations in response to a court order imposing an injunction against enforcing the anti-gay law.

As a result, gay service members can already serve openly without fear of discharge, although openly gay people are still barred from enlisting in the armed forces.

The injunction ā€” initially issued last year by a California federal district court ā€” was reinstituted earlier this month by the U.S. Ninth Circuit Court of Appeals in the case of Log Cabin Republicans v. United States, pending litigation challenging the constitutionality of the military’s gay ban.

The moratorium on discharges could be lifted ā€” making gay service members vulnerable once again ā€” if the U.S. government succeeds in efforts to convince the court to place a stay on the injunction. On Monday, the Justice Department requested this stay and maintained the Obama administration wants an “orderly process for repealing” the military’s gay ban.

R. Clarke Cooper, Log Cabin’s executive director, issued a statement saying his organization’s lawsuit helped lead to “Don’t Ask, Don’t Tell” repeal certification.

“Log Cabin Republicans are proud to have helped put an end to ‘Don’t Ask, Don’t Tell,'” Cooper said. “It is our hope that the clear precedent established in federal court that will ensure an absolute end to this unconstitutional law.”

Even with “Don’t Ask, Don’t Tell” on its way to being off the books, supporters of open service say more work is necessary to ensure gay and straight service members stand on equal footing.

One option to address this issue is an executive order from the president that would ensure non-discrimination for gay service members. Currently, gay service members have no recourse outside of their chain of command if they feel they’re experiencing discrimination on the job.

Sarvis, who has called for such a directive since February, renewed his call this week for such an executive order on the basis that “every service member deserves equal respect in the work environment.”

“Signing legislation that allows for repeal of ā€˜Donā€™t Ask, Donā€™t Tellā€™ was necessary, but it is not sufficient for ensuring equality in the military,” Sarvis said. “Itā€™s critical that gay and lesbian service members have the same avenues for recourse as their straight counterparts when it comes to harassment and discrimination.”

Other inequities exist between gay service members with partners or spouses and straight service members in marriages on issues such as living expenses and medical care, travel, housing benefits.Ā Much of this inequity is because of the Defense of Marriage Act, which prohibits federal recognition of same-sex marriage.

LGBT advocates are also expressing concerns about transgender people still being unable to serve openly in the U.S. military. But openly transgender Americans can’t serve openly not because of law, but by regulation ā€” so the change could be implemented administratively.

An executive order prohibiting discrimination against service members based on sexual orientation and gender identity would also stop the separations of service members who come out as transgender.

Mara Keisling, executive director of the National Center for Transgender Equality, issued a reminder on Friday that transgender Americans are still unable to serve openly in the armed forces.

“NCTE rejoices whenever discriminatory laws end and ‘Don’t Ask, Don’t Tell’ was a discriminatory law and it needed to go,” Keisling said. “However, as repeal is certified, transgender servicemembers continue serving in silence. NCTE looks forward to the day when the U.S. armed forces ends discrimination in all its forms.”

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U.S. Federal Courts

Second judge blocks Trump’s anti-trans military ban

Federal courts in D.C. and Washington State have now issued injunctions

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President Donald Trump (Washington Blade photo by Michael Key)

The U.S. District Court for the Western District of Washington on Thursday became the second court to issue a nationwide injunction blocking the enforcement of President Donald Trump’s executive order barring transgender people from military service.

The order in Schilling v. Trump from Judge Benjamin Hale Settle comes after Judge Ana Reyes of the U.S. District Court for the District of Columbia blocked implementation of the ban earlier this month in Talbott v. Trump.

Friday was the date by which the Pentagon was to begin identifying and separating transgender service members from the armed forces, per Trump’s executive action.

The lead attorneys in Talbott v. Trump, GLAD Law Senior Director of Transgender and Queer Rights Jennifer Levi and Shannon Minter, legal director of the National Center for Lesbian Rights, shared statements about the injunction in a press release by NCLR.

ā€œGiven the thousands of brave and decorated transgender servicemembers facing unthinkable harms as the result of this ban, we are heartened but not surprised by todayā€™s decision,ā€ Levi said. “President Trump’s executive order and Secretary [Pete] Hegseth’s implementation represent a policy that cannot be constitutionally justified. Thousands of transgender servicemembers currently serving have clearly demonstrated they meet all military standards, with many deployed to critical missions worldwide, proving their capabilities beyond question.”

Levi continued, “These dedicated servicemembers and their families have earned our nation’s gratitude and respect, and the government has a responsibility to honor the commitments it has made to them. This is about keeping faith with Americans who have risked everything to defend our freedoms.”

ā€œIn both Talbott and Shilling, it was abundantly clear to the court that it must act swiftly to protect our troops from an unconstitutional and indefensible ban that would disrupt the lives and dismantle the careers of thousands of transgender servicemembers and their families,” Minter said. “The harms associated with this ban are gut-wrenching.ā€

Minter continued, ā€œIn each of these cases, the government did not even attempt to claim that any evidence supported its position. There is no reason to discharge individuals who are serving capably and honorably.ā€

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U.S. Federal Courts

Federal judge hears case that challenges Trump passport executive order

State Department no longer issues passports with ‘X’ gender markers

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A federal judge in Boston on Tuesday heard oral arguments in a lawsuit against President Donald Trump’s executive order that bans the State Department from issuing passports with “X” gender markers.

Ashton Orr, Zaya Perysian, Sawyer Soe, Chastain Anderson, Drew Hall, Bella Boe, and Reid Solomon-Lane are the plaintiffs in the class action lawsuit the American Civil Liberties Union, the ACLU of Massachusetts, and the private law firm Covington & Burling LPP filed in U.S. District Court for the District of Massachusetts. The lawsuit names Trump and Secretary of State Marco Rubio as defendants.

Former Secretary of State Antony Blinken in June 2021 announced the State Department would begin to issue gender-neutral passports and documents for American citizens who were born overseas.

Dana Zzyym, an intersex U.S. Navy veteran who identifies as nonbinary, in 2015 filed a federal lawsuit against the State Department after it denied their application for a passport with an ā€œXā€ gender marker. Zzyym in October 2021 received the first gender-neutral American passport.

The State Department policy took effect on April 11, 2022.

Trump signed the executive order that overturned it shortly after he took office. Rubio later directed State Department personnel to ā€œsuspend any application requesting an ā€˜Xā€™ sex marker and do not take any further action pending additional guidance from the department.ā€  

ā€œEven before Donald Trump was inaugurated, it was clear to me he wanted to control the lives and identities of transgender people like myself,ā€ said Orr, a transgender man who lives in West Virginia, in a press release the ACLU released before U.S. District Judge Julia Kobick heard the case. ā€œLike many others, I rushed to update my passport hoping I could get an accurate version. Now, the State Department has suspended my application and withheld all my documents from me, including my passport, my birth certificate, and even my marriage license.”

Li Nowlin-Sohl, a staff attorney for the ACLU’s LGBTQ and HIV Project, described the Trump-Vance administration’s passport policy as “openly discriminatory and animated by a transparent desire to drive transgender people out of public life altogether.”

Germany, Denmark, Finland, and the Netherlands are among the countries that have issued travel advisories for trans and nonbinary people who plan to visit the U.S.

WorldPride is scheduled to take place in D.C. from May 17-June 8. InterPride, the organization that coordinates WorldPride events, on March 12 issued its own travel advisory for trans and nonbinary people who want to travel to the U.S.

It is unclear when Kobick will issue her ruling. 

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Federal Government

Trump ‘culture war’ complicates HUD’s distribution of $3.6B in housing grants

Senate Dems call for new agreements

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U.S. Sen. Adam Schiff (D-Calif.) (Washington Blade photo by Michael Key)

The disbursement of more than $3.6 billion in federal grants to housing providers has been paused for weeks while the U.S. Department of Housing and Urban Development seeks to condition receipt of the funding on compliance with President Donald Trump’s executive actions targeting DEI and transgender and immigrant communities.

March 4 was the statutory deadline for the agency to distribute the funds, which come through the Continuum of Care Program in support of local governments and nonprofit organizations working to promote “a community-wide commitment to the goal of ending homelessness.”

On March 13, a group of Senate Democrats led by U.S. Sens. Adam Schiff (Calif.) and Tina Smith (Minn.) wrote to HUD Secretary Scott Turner urging him to move quickly on distributing the grants and warning of the consequences that recipients are now facing and the harm they will encounter in the future if delays persist.

“To keep the lights on, providers are now being forced to draw on lines of credit at significant cost and risk to their organizations,” the senators said. “These projects enable homeless service providers to help veterans, families with children, youth, seniors, and vulnerable individuals access permanent and temporary housing, crisis counseling, and other supportive services.ā€

HUD subsequently disseminated grant agreements ā€” and Schiff published an example on his office’s website ā€” that included, among other provisions, language stipulating that the awardee (1) “shall not use grant funds to promote ‘gender ideology,’ as defined in E.O. 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” (2) certifies that it does not operate any programs promoting diversity, equity, and inclusion that violate any applicable Federal anti-discrimination laws, and (3) agrees not to use “that funding in a manner that by design or effect facilitates the subsidization or promotion of illegal immigration or abets so-called ‘sanctuary’ policies that seek to shield illegal aliens from deportation.”

On March 14, the 4th U.S. Court of Appeals stayed a nationwide injunction enjoining three parts of Trump’s executive order on DEI, and the following day, HUD rescinded the CoC contracts and said to expect new agreements within a week as the agency was “working to revise its CoC grant agreements to be consistent with Federal law and compliant with applicable court orders.”

Schiff then led a second letter to Turner on March 19 with the Senate Democratic Leader Chuck Schumer (N.Y.) and U.S. Sens. Alex Padilla (D-Calif.), Martin Heinrich (D-N.M.), Ron Wyden (D-Ore.), Mazie Hirono (D- Hawaii), and Richard Blumenthal (Conn.).

“We urge the department to immediately issue new CoC grant agreements consistent with longstanding practiceā€” free of the aforementioned conditionsā€” to ensure all individuals experiencing homelessness receive protection and support, regardless of gender identity, location, or other characteristics,” they said, requesting a response by March 31.

“The initial FY2024 grant agreements issued to CoC funding recipients contained new requirements that are deeply problematic, and likely unlawful, requirements,” the senators argued. “These mandates, such as barring shelters from serving transgender people, prohibiting DEI initiatives, and certifying that they do not support ‘sanctuary’ policies protecting noncitizens, conflict with federal civil rights, fair housing, and immigration laws, raising serious legal and constitutional concerns.”

The lawmakers noted “the harm caused by these delayed and unfulfilled CoC grant agreements will fall disproportionately on our most vulnerable populations, including women, families with children, youth, veterans, survivors of domestic and intimate partner violence, people with disabilities, and LGBTQ+ individuals.” They added, “Women experiencing homelessness ā€” many of whom are fleeing domestic abuse ā€” already face significant barriers to safety and stability, and restricting access to critical housing services will only further endanger their lives and well-being.”

Citing research that nearly one in three transgender Americans has experiences homelessness in their lives, Schiff and his colleagues stressed that “Transgender and nonbinary people in the U.S. face significant barriers to securing safe housing, with many experiencing homelessness and high rates of mistreatment and violence in shelters.”

With respect to the language in the agreements about “sanctuary” policies, the senators wrote “The organizations receiving CoC funds exist to provide critical, non-discriminatory aid to those in need, regardless of their immigration status. These organizations do not set or enforce immigration policy ā€” they simply fulfill their legal duty to provide life-saving and life-changing care.”

Later on March 19, HUD began issuing new contracts that did not contain the provision concerning DEI but did include the same language about “gender ideology” and “sanctuary” policies.

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