News
Defense bill contains gay-related provisions
Expanded conscience protections; sodomy ban repealed in military code
The defense authorization passed by Congress includes gay-related provisions. (Washington Blade file photo by Michael Key)
The U.S. Congress passed major defense budget legislation on Thursday that includes provisions related to the LGBT community — both good and bad — in the aftermath of “Don’t Ask, Don’t Tell.”
The fiscal year 2014 defense authorization bill contains an expansion of the conscience protections for service members under current law, but also repeals the sodomy ban under military law and calls for a report on HIV policy within the U.S. military.
The Senate approved late Thursday by a vote of 84-15 a $630 billion version of the bill, which primarily reauthorizes pay for troops and funding for military programs. The House already approved the legislation, so it’s heading to President Obama’s desk.
Sen. Carl Levin (D-Mich.), the retiring chair of the Senate Armed Services Committee, issued a statement upon passage of the legislation praising the bipartisan nature of its approval.
“Tonight we passed legislation that is good for our national security, and for the men and women who protect us and their families,” Levin said. “The Senate vote is a strong bipartisan statement that, despite our differences, we can come together and accomplish important business for the good of the country.”
Under Section 532, the legislation contains an expansion of the conscience provision that was enacted as part of last year’s defense authorization bill. Under this provision, the armed services shall accommodate service members’ expression of their beliefs — unless it would have an adverse impact on military readiness or good order and discipline.
The language was inserted by Sen. Mike Lee (R-Utah) during the Senate Armed Services Committee markup of the fiscal year 2014 defense authorization. It’s along the lines of a conscience amendment submitted by Rep. Mike Fleming (R-La.) during the House Armed Services Committee markup of its version of the bill, but not quite as strong. LGBT advocates decried the House version of the amendment as a means to enable service members to discriminate and harass their gay colleagues.
A related provision, Section 533, instructs the Inspector General of the Department of Defense to submit a report to Congress no longer than 18 months after the bill is signed into law on incidents of adverse personnel actions or discrimination against troops based on their moral beliefs.
Tony Perkins, president of the anti-gay Family Research Council, praised Congress in a statement over inclusion of the provision, which he said is a means for “protecting the right of service members to freely practice and express their faith.”
“Congress acted appropriately after investigating numerous incidents involving service members who have had their careers threatened, and harassed simply for practicing their faith in a real and tangible way,” Perkins said. “The religious liberty violations have grown so frequent in recent years leading many service members to report being too fearful to share their faith.”
After the enactment of the earlier conscience provision under the previous defense authorization bill, Obama said the Pentagon assured him the language wouldn’t change how the armed forces operated. The Defense Department didn’t respond to the Washington Blade’s request for comment on how implementation will work this time around.
Ian Thompson, legislative representative of the American Civil Liberties Union, said the inclusion of the conscience provision in the defense authorization bill was unnecessary.
“The ACLU believes that the Constitution and existing laws and regulations already offer all members of the Armed Forces, including chaplains, strong protections for their religious beliefs,” Thompson said.
Fred Sainz, the Human Rights Campaign’s vice president of communications, expressed a similar sentiment that the provision is unnecessary because service members’ religious views are already protected under current policy.
“Although this amendment is unnecessary, Congress dropped a different version adopted by the House of Representatives that would have been truly harmful, requiring the military to accommodate beliefs, actions, and speech of service members unless the armed forces could prove ‘actual harm’ to good order and discipline,” Sainz said.
But the legislation as a whole also contains positive language sought by LGBT advocates in the aftermath of “Don’t Ask, Don’t Tell” repeal. Among these provisions is Section 1707 — repeal of the ban on sodomy for gay and straight service members under Article 125 of the Uniform Code of Military Justice. The provision was added by Sen. Mark Udall (D-Colo.).
In its place, the legislation inserts into military code a provision making “unnatural carnal copulation” with another person “by force” subject to a court martial. The provision also reasserts the ban on bestiality in military code.
Although the sodomy ban was rarely enforced for service members engaging in consensual sex in private, it has remained on the books and been used to prosecute troops in combination with additional infractions.
ACLU’s Thompson said the repeal of the sodomy ban is an important step forward to guarantee the liberty of service members — gay and straight — in the aftermath of “Don’t Ask, Don’t Tell” repeal.
“This is a welcome and overdue step forward that respects the liberty and privacy of all service members, and is especially significant for gay and lesbian service members whose intimate relationships, including marriages, were labeled a violation of military criminal law,” Thompson said. “Removing this stigmatizing and discriminatory provision from the Uniform Code of Military Justice advances the promise of equal treatment for all military personnel.”
Additionally, under Section 572, the legislation directs the Pentagon to submit a report to Congress no later than 180 days after the bill is signed into law on personnel policies regarding service members with HIV or Hepatitis B. The bill directs the Pentagon to include a description of the policies as well as related retention, deployment and disciplinary actions as well as an assessment of whether these policies are evidence-based and medically accurate.
According to the LGBT military group SPART*A, service members become non-deployable once they’re discovered to have HIV; can’t commission as an officer or warrant officer; can’t fly aircraft or work in any jobs requiring a flight physical; are restricted to stateside duty assignments (with the exception of the Navy); and are not eligible for special schools such as Ranger, Special Forces or other special ops jobs.
Thompson said the provision is welcome because it will examine whether the military’s current HIV policy is appropriate or outdated.
“This review is welcome and overdue becausemany of our laws, policies, and regulations regarding HIV were written at a time when we knew far less about the routes and risks of HIV transmission, and prior to the development of effective HIV treatment,” Thompson said.
Another important non-LGBT provision in the defense authorization bill replaces foreign transfer restrictions in current law to enable President Obama to close the detention facility in Guantanamo Bay. The bill also seeks to aid victims of sexual assault in the military by criminalizing retaliation against victims who report it, preventing military commanders from overturning jury convictions and protecting victims of sexual assault from abusive treatment during pre-trial proceedings.
The LGBT group Freedom to Work had said insertion of the Employment Non-Discrimination Act into the defense authorization bill could be a viable way to pass the measure. However, prior to ENDA’s passage in the Senate, Senate Majority Leader Harry Reid (D-Nev.) told the Washington Blade such inclusion wasn’t a viable option because he didn’t know if the larger defense bill would pass.
On Thursday, White House Press Secretary Jay Carney issued a statement saying the administration has concerns with certain aspects of the legislation, but supports it overall.
“Although the bill includes a number of provisions that restrict or limit the Defense Department’s ability to align military capabilities and force structure with the President’s strategy and implement certain efficiencies, overall the Administration is pleased with the modifications and improvements contained in the bill that address most of the Administration’s significant objections with earlier versions regarding these issues,” Carney said. “The Administration supports passage of the legislation.”
U.S. Military/Pentagon
Federal appeals court rules White House illegally banned trans troops
Defense Secretary Pete Hegseth says Pentagon will appeal to SCOTUS
A panel of federal appeals court judges ruled that President Donald Trump’s policy banning transgender troops likely violates their constitutional rights.
The three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 that Trump’s Executive Order 14183, also known as “Prioritizing Military Excellence and Readiness,” was created with the intent to exclude people from the military based on their gender identity.
The policy argues that trans people are inherently incapable of meeting the military’s “high standards of readiness, lethality, cohesion, honesty, humility, uniformity, and integrity,” citing a history of or signs of gender dysphoria as the cause. According to the Defense Department, this creates “medical, surgical, and mental health constraints on [an] individual.”
The policy states that, regardless of the physical or intellectual capabilities of each applicant, it views trans military applicants as a monolith, considering them less qualified than their cisgender peers.
Despite the panel’s majority opinion issued on Monday, the first day of Pride Month, the ban remains in effect. The U.S. Supreme Court allowed the Pentagon to enforce the policy last year and will continue to allow it to remain in place as litigation proceeds.
The panel’s new ruling will prevent the military from discharging current service members named in the lawsuit, but it does not allow new transrecruits to join.
The policy “appears to be driven by the bare desire to harm a politically unpopular group: persons who identify as transgender,” Judge Robert Wilkins, a Democratic appointee of President Barack Obama wrote for the majority.
Judge Justin Walker, the author of the dissenting opinion and a Republican Trump appointee, argued that the authority to determine military policy does not rest with the courts. Instead, he wrote, the Constitution grants that power to Congress through legislation and to the president as commander in chief of the armed forces.
“We have neither the expertise nor the authority to decide whether the military can exclude the plaintiffs from its ranks. The Constitution assigns that authority to Congress and the commander-in-chief,” Walker wrote.
Defense Secretary Pete Hegseth indicated that an appeal is in the works, posting, “See you at SCOTUS” on X on Monday in response to the ruling.
Jennifer Levi, senior director of transgender and queer rights at GLAD Law, which has led the litigation since last November, applauded the decision.
“Today’s decision is a powerful vindication of the plaintiffs’ extraordinary courage and unwavering commitment to their country,” Levi said.
The Washington Blade spoke with Second Lt. Nicolas (Nic) Talbott of the U.S. Army, the lead plaintiff in the case, and Levi from GLAD Law back in November.
While discussing the case and his experiences as a trans service member, Talbott said his identity is an asset rather than a hindrance, particularly when it comes to identifying problems and finding solutions, regardless of what others may think or say.
“Being transgender is not some sad thing that people go through,” Talbott told the Blade. “This is something that has taken years and years and years of dedication and discipline and research and ups and downs to get to the point where I am today … my ability to transition was essential to getting me to that point where I am today.”
He also discussed the impact of removing qualified and dedicated service members from the military, arguing that the consequences will be felt long after Trump leaves office.
“When we’re losing thousands of those qualified, experienced individuals … those are seats that are not just going to be able to be filled by anybody,” he said. “[That’s] military training that’s not going to be able to be replaced for years and years to come.”
“Every person who puts on the uniform is expected to make a tremendous amount of sacrifice,” Talbott said. “Who I am under this uniform should have no bearing on that … We shouldn’t be picking and choosing which veterans are worthy of our thanks on that day.”
Levi characterized the policy as overtly cruel and legally indefensible to the Blade.
“This policy and its rollout is even more cruel than the first in a number of ways,” Levi explained. “For one, the policy itself says that transgender people are dishonest, untrustworthy and undisciplined, which is deeply offensive and degrading and demeaning.”
She also argued that the administration’s cost justification is flawed, saying that removing and replacing trans service members is more expensive than retaining them.
“There’s no legitimate justification relating to cost … it is far more expensive to both purge the military of people who are serving and also to replace people … than to provide the minuscule amount of costs for medications other service members routinely get.”
National
Results from key Tuesday primary races
State officials in California had not called the governor’s race as of Wednesday morning but Republican Steve Hilton and Democrat Xavier Becerra appear likely to advance to the general election.
The race for governor has been scrambled several times after Kamala Harris opted not to run, Rep. Eric Swalwell dropped out after sexual misconduct allegations surfaced, and Rep. Katie Porter’s campaign fizzled. Becerra would be the state’s first Latino governor since 1875 if elected. Hilton was endorsed by President Trump.
In the Los Angeles mayor’s race, the AP declared that incumbent Mayor Karen Bass will advance to the Nov. 3 runoff while former reality TV star Spencer Pratt and LA Council member Nithya Raman were competing for second place. California is notoriously slow in counting ballots and only about half of the results were available by Wednesday morning.
In San Francisco, Democratic State Sen. Scott Wiener advanced to the general election in November, besting Supervisor Connie Chan, who was endorsed by House Speaker Emerita Nancy Pelosi. Pelosi is retiring from Congress after nearly 40 years in the House.
In Iowa, Democratic state Rep. Josh Turek won the primary for an open U.S. Senate seat, defeating state Sen. Zach Wahls. Turek will face Rep. Ashley Hinson, who won the GOP primary with President Donald Trump’s endorsement, in the general election.
The Iowa seat is open because Sen. Joni Ernst (R) decided not to seek re-election. The primary was closely watched by LGBTQ advocates because Wahls rose to national prominence after a speech he made defending marriage equality went viral in 2011. Wahls was raised by a lesbian couple.
Congress
10 HIV/AIDS activists arrested on Capitol Hill
Protesters interrupted Secretary of State Marco Rubio during hearing
U.S. Capitol Police on Tuesday arrested 10 HIV/AIDS activists who protested Secretary of State Marco Rubio during a Senate Foreign Relations Committee hearing.
The activists from Housing Works, Health GAP, the Treatment Action Group, and ACT UP held signs and chanted “Rubio’s Cuts Kill People with AIDS, PEPFAR Saves Lives!” before officers removed them from Dirksen Senate Office Building room where the hearing took place.
A media advisory the Washington Blade received before the protest noted “mounting evidence of Rubio’s attempts to sabotage PEPFAR (the President’s Emergency Plan for AIDS Relief, U.S. bilateral AIDS program) and vital global health programs.” The press release specifically highlighted three specific points:
• Eliminating Centers for Disease Control’s (CDC) lifesaving PEPFAR programs, which currently support approximately 12 million people on HIV treatment across 51 countries. Instead, Rubio intends to dismantle CDC’s current PEPFAR role and stamp out their global footprint in disease outbreak and surveillance for pandemics beyond HIV. Experts including eight former CDC Directors under Republican and Democratic administrations have spoken out against this effort to dismantle PEPFAR. Recent PEPFAR data showed sharp decreases in the numbers of people newly tested, diagnosed, and treated for HIV, but these data would have been even worse if not for CDC’s PEPFAR programs.
• Withholding $2 billion in Congressionally appropriated FY25 funding, including $330 million to combat HIV, $250 million to fight malaria, $320 million for maternal and child health programs, and nearly $650 million in global health security programs.
• Negotiating secret bilateral deals blackmailing African governments by demanding access to critical mineral wealth as a condition of access to HIV treatment and prevention funding.
The groups have staged several protests against the Trump-Vance administration’s HIV/AIDS policies since it took office.
Rubio on Jan. 28, 2025, issued a waiver that allowed PEPFAR and other “life-saving humanitarian assistance” programs to continue to operate during a freeze on nearly all U.S. foreign aid spending. HIV/AIDS service providers around the world with whom the Blade has spoken say PEPFAR cuts and the loss of funding from the U.S. Agency for International Development, which officially closed on July 1, 2025, has severely impacted their work.
The State Department last September announced PEPFAR will distribute lenacapavir in countries with high prevalence rates.
The New York Times last summer reported Vought “apportioned” only $2.9 billion of $6 billion that Congress set aside for PEPFAR for fiscal year 2025. (PEPFAR in the coming fiscal year will use funds allocated in fiscal year 2024.)
Bipartisan opposition in the U.S. Senate prompted the Trump-Vance administration last July withdraw a proposal to cut $400 million from PEPFAR’s budget. Vought a few weeks later said he would use a “pocket rescission” to cancel $4.9 billion for HIV/AIDS prevention and global health programs and other foreign aid assistance initiatives that Congress had already approved.
The White House in January expanded the global gag rule to ban U.S. foreign aid for groups that promote “gender ideology.” President Ronald Reagan in 1985 implemented the original regulation, also known as the “Mexico City” policy, which bans U.S. foreign aid for groups that support abortion and/or offer abortion-related services. Advocacy groups insist the expanded rule will adversely impact HIV prevention efforts around the world.
“Congress must stop Secretary Rubio before he dismantles PEPFAR,” said Treatment Action Group’s Kendall Martinez-Wright. “Rubio continues to defy the will of Congress and the American people who want this program restored and repaired. Under his leadership he is diverting funding and trying to eliminate the essential role of technical experts in global HIV and global health, while program performance is flailing.”
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