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
Gallup finds LGBTQ support among Americans is dropping
Marriage equality support lowest since 2016
Gallup, one of the leading organizations in public opinion polling, has found that LGBTQ support among Americans is dropping.
The poll, whose data was collected using Gallup’s annual Values and Beliefs survey, was conducted in May and was published on Wednesday. The data was collected through telephone interviews from a sample of more than 1,000 adults living in all 50 states and D.C. using random digit dialing.
It highlights declining attitudes surrounding LGBTQ issues in multiple areas — from support for same-sex marriage to views on gender identity and the morality of one’s sexuality.
One of the most striking findings was that support for marriage equality fell six points from its 2022-2023 high.
The survey also found that 62 percent of Americans view gay and lesbian relations as morally acceptable, the lowest level since 2016 just after same-sex marriage was legalized nationwide by the U.S. Supreme Court.
One newer question on the poll found that the perceived morality of changing one’s gender has dropped eight points since 2021, indicating the American public is less supportive of transgender people.
The data attributes much of the decline to shifting Republican views alongside the party itself. Conservative leaders have pushed back against diversity, equity, and inclusion programs that were intended to foster greater acceptance of LGBTQ people and other historically disadvantaged groups.
President Donald Trump has been a guiding force behind waves of anti-LGBTQ sentiment, particularly when it comes to trans rights. The president has enacted multiple executive orders, including Executive Order 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which mandates that gender be defined by one’s sex assigned at birth. He also signed Executive Order 14183, “Prioritizing Military Excellence and Readiness,” which barred qualified trans applicants from joining the military and led to the removal of trans service members already serving in the armed forces.
Additionally, he signed Executive Order 14201, “Keeping Men Out of Women’s Sports,” which prohibits trans female athletes from participating on women’s and girls’ sports teams.
In February, Gallup found that an estimated 9 percent of Americans identified as part of the LGBTQ community in some form.
The organization also found that 23 percent of adults under age 30 identify as LGBTQ, compared with 10 percent of those ages 30 to 49 and 3 percent or less among those ages 50 and older.
Congress
Ogles faces bipartisan backlash over anti-gay social media post
Tenn. congressman blamed the comment on staffer
U.S. Rep. Andy Ogles (R-Tenn.), who represents Tennessee’s 5th Congressional District, is facing backlash from LGBTQ advocates and fellow Republicans after a social media post declared that “homosexuality has no place in America.”
“Homosexuality has no place in America. Happy Nuclear Family Month,” the congressman wrote in a post on X that was later deleted.
According to the Williams Institute at UCLA School of Law, an estimated 6.3 percent of U.S. adults identify as LGBTQ.
Following widespread criticism, Ogles removed the post and blamed it on a staff member.
“The post was stupid, hurtful and a complete distraction from my America First focus. The employee has been reprimanded,” Ogles said in a statement.
The Washington Blade reached out to Ogles’s office for comment but did not receive a response by press time.
Among those condemning the message was U.S. Rep. Mike Lawler (R-N.Y.), who called it “absolutely idiotic” in a social media post.
“Homosexuality exists. In America,” Lawler wrote on X. “In fact, Andy, you have family, friends, neighbors, colleagues, and constituents who are gay and lesbian. It doesn’t make them less than or somehow unworthy of being an American.”
U.S. Sen. Ted Cruz (R-Texas) also criticized Ogles’s remarks.
“For all of recorded history, homosexuals have been a part of humanity,” Cruz told TMZ DC. “I think the behavior of consenting adults is their business.”
Chris Sanders, the executive director for the Tennessee Equality Project and Tennessee Equality Project Foundation provided a statement to the Blade about Ogles’s comment.
“The Tennessee Nuclear Family Month resolution has really backfired on conservatives by ensnaring Congressman Ogles in scandal. He used the resolution as a pretext to say that our community doesn’t belong in America, resulting in incredible backlash from across the partisan divide,” Sanders said. “It is a good opportunity for him to pause and reflect on whether it’s time for him to resign. Fighting one’s own constituents is not the purpose of serving in Congress.”
Human Rights Campaign Senior Press Secretary Jarred Keller provided a statement to the Blade regarding Ogles’s comments.
“LGBTQ+ people are woven into the fabric of America, and any politician who questions that is severely out of touch with reality. When so many people are worried about whether they can afford gas to get to work or groceries for their families, the last thing we need is right-wing Republicans targeting marginalized communities with hateful attacks,” Keller said. “Representative Ogles should spend less time attacking LGBTQ+ people and start addressing the issues that actually matter, because last I checked, our community isn’t the reason families are struggling to make ends meet.”
The controversy comes as Tennessee continues to advance legislation affecting LGBTQ residents. The state already has several laws on the books that LGBTQ advocates have criticized, including the Adult Entertainment Act, enacted in 2023, which restricts certain “adult cabaret performances.”
Lawmakers have also introduced additional measures this legislative session, including the “No Pride Flag or Month Act,” which would prohibit state employees, volunteers, and agents from displaying Pride flags or participating in Pride observances while acting in an official capacity.
Another proposal, the “Banning Bostock Act” would seek to limit the application of state anti-discrimination protections based on the U.S. Supreme Court’s decision in Bostock v. Clayton County. Tennessee lawmakers have also passed other measures restricting LGBTQ rights and access to gender-affirming health care.
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.”
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