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.
Florida
DNC slams White House for slashing Fla. AIDS funding
State will have to cut medications for more than 16,000 people
The Trump-Vance administration and congressional Republicans’ “Big Beautiful Bill” could strip more than 10,000 Floridians of life-saving HIV medication.
The Florida Department of Health announced there would be large cuts to the AIDS Drug Assistance Program in the Sunshine State. The program switched from covering those making up to 400 percent of the Federal Poverty Level, which was anyone making $62,600 or less, in 2025, to only covering those making up to 130 percent of the FPL, or $20,345 a year in 2026.
Cuts to the AIDS Drug Assistance Program, which provides medication to low-income people living with HIV/AIDS, will prevent a dramatic $120 million funding shortfall as a result of the Big Beautiful Bill according to the Florida Department of Health.
The International Association of Providers of AIDS Care and Florida Surgeon General Joseph Ladapo warned that the situation could easily become a “crisis” without changing the current funding setup.
“It is a serious issue,” Ladapo told the Tampa Bay Times. “It’s a really, really serious issue.”
The Florida Department of Health currently has a “UPDATES TO ADAP” warning on the state’s AIDS Drug Assistance Program webpage, recommending Floridians who once relied on tax credits and subsidies to pay for their costly HIV/AIDS medication to find other avenues to get the crucial medications — including through linking addresses of Florida Association of Community Health Centers and listing Florida Non-Profit HIV/AIDS Organizations rather than have the government pay for it.
HIV disproportionately impacts low income people, people of color, and LGBTQ people
The Tampa Bay Times first published this story on Thursday, which began gaining attention in the Sunshine State, eventually leading the Democratic Party to, once again, condemn the Big Beautiful Bill pushed by congressional republicans.
“Cruelty is a feature and not a bug of the Trump administration. In the latest attack on the LGBTQ+ community, Donald Trump and Florida Republicans are ripping away life-saving HIV medication from over 10,000 Floridians because they refuse to extend enhanced ACA tax credits,” Democratic National Committee spokesperson Albert Fujii told the Washington Blade. “While Donald Trump and his allies continue to make clear that they don’t give a damn about millions of Americans and our community, Democrats will keep fighting to protect health care for LGBTQ+ Americans across the country.”
More than 4.7 million people in Florida receive health insurance through the federal marketplace, according to KKF, an independent source for health policy research and polling. That is the largest amount of people in any state to be receiving federal health care — despite it only being the third most populous state.
Florida also has one of the largest shares of people who use the AIDS Drug Assistance Program who are on the federal marketplace: about 31 percent as of 2023, according to the Tampa Bay Times.
“I can’t understand why there’s been no transparency,” David Poole also told the Times, who oversaw Florida’s AIDS program from 1993 to 2005. “There is something seriously wrong.”
The National Alliance of State and Territorial AIDS Directors estimates that more than 16,000 people will lose coverage
U.S. Supreme Court
Competing rallies draw hundreds to Supreme Court
Activists, politicians gather during oral arguments over trans youth participation in sports
Hundreds of supporters and opponents of trans rights gathered outside of the United States Supreme Court during oral arguments for Little v. Hecox and West Virginia v. B.P.J. on Tuesday. Two competing rallies were held next to each other, with politicians and opposing movement leaders at each.
“Trans rights are human rights!” proclaimed U.S. Sen. Ed Markey (D-Mass.) to the crowd of LGBTQ rights supporters. “I am here today because trans kids deserve more than to be debated on cable news. They deserve joy. They deserve support. They deserve to grow up knowing that their country has their back.”
“And I am here today because we have been down this hateful road before,” Markey continued. “We have seen time and time again what happens when the courts are asked to uphold discrimination. History eventually corrects those mistakes, but only after the real harm is done to human beings.”
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U.S. Education Secretary Linda McMahon spoke at the other podium set up a few feet away surrounded by signs, “Two Sexes. One Truth.” and “Reality Matters. Biology Matters.”
“In just four years, the Biden administration reversed decades of progress,” said McMahon. “twisting the law to urge that sex is not defined by objective biological reality, but by subjective notion of gender identity. We’ve seen the consequences of the Biden administration’s advocacy of transgender agendas.”
U.S. Rep. Mark Takano (D-Calif.), chair of the Congressional Equality Caucus, was introduced on the opposing podium during McMahon’s remarks.
“This court, whose building that we stand before this morning, did something quite remarkable six years ago.” Takano said. “It did the humanely decent thing, and legally correct thing. In the Bostock decision, the Supreme Court said that trans employees exist. It said that trans employees matter. It said that Title VII of the Civil Rights Act protects employees from discrimination based on sex, and that discrimination based on sex includes discrimination based on gender identity and sexual orientation. It recognizes that trans people have workplace rights and that their livelihoods cannot be denied to them, because of who they are as trans people.”
“Today, we ask this court to be consistent,” Takano continued. “If trans employees exist, surely trans teenagers exist. If trans teenagers exist, surely trans children exist. If trans employees have a right not to be discriminated against in the workplace, trans kids have a right to a free and equal education in school.”
Takano then turned and pointed his finger toward McMahon.
“Did you hear that, Secretary McMahon?” Takano addressed McMahon. “Trans kids have a right to a free and equal education! Restore the Office of Civil Rights! Did you hear me Secretary McMahon? You will not speak louder or speak over me or over these people.”
Both politicians continued their remarks from opposing podiums.
“I end with a message to trans youth who need to know that there are adults who reject the political weaponization of hate and bigotry,” Takano said. “To you, I say: you matter. You are not alone. Discrimination has no place in our schools. It has no place in our laws, and it has no place in America.”
U.S. Supreme Court
Supreme Court hears arguments in two critical cases on trans sports bans
Justices considered whether laws unconstitutional under Title IX.
The Supreme Court heard two cases today that could change how the Equal Protection Clause and Title IX are enforced.
The cases, Little v. Hecox and West Virginia v. B.P.J., ask the court to determine whether state laws blocking transgender girls from participating on girls’ teams at publicly funded schools violates the 14th Amendment’s Equal Protection Clause and Title IX. Once decided, the rulings could reshape how laws addressing sex discrimination are interpreted nationwide.
Chief Justice John Roberts raised questions about whether Bostock v. Clayton County — the landmark case holding that Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation or gender identity — applies in the context of athletics. He questioned whether transgender girls should be considered girls under the law, noting that they were assigned male at birth.
“I think the basic focus of the discussion up until now, which is, as I see it anyway, whether or not we should view your position as a challenge to the distinction between boys and girls on the basis of sex or whether or not you are perfectly comfortable with the distinction between boys and girls, you just want an exception to the biological definition of girls.”
“How we approach the situation of looking at it not as boys versus girls but whether or not there should be an exception with respect to the definition of girls,” Roberts added, suggesting the implications could extend beyond athletics. “That would — if we adopted that, that would have to apply across the board and not simply to the area of athletics.”
Justice Clarence Thomas echoed Roberts’ concerns, questioning how sex-based classifications function under Title IX and what would happen if Idaho’s ban were struck down.
“Does a — the justification for a classification as you have in Title IX, male/female sports, let’s take, for example, an individual male who is not a good athlete, say, a lousy tennis player, and does not make the women’s — and wants to try out for the women’s tennis team, and he said there is no way I’m better than the women’s tennis players. How is that different from what you’re being required to do here?”
Justice Samuel Alito addressed what many in the courtroom seemed reluctant to state directly: the legal definition of sex.
“Under Title IX, what does the term ‘sex’ mean?” Alito asked Principal Deputy Solicitor General Hashim Mooppan, who was arguing in support of Idaho’s law. Mooppan maintained that sex should be defined at birth.
“We think it’s properly interpreted pursuant to its ordinary traditional definition of biological sex and think probably given the time it was enacted, reproductive biology is probably the best way of understanding that,” Mooppan said.
Justice Sonia Sotomayor pushed back, questioning how that definition did not amount to sex discrimination against Lindsay Hecox under Idaho law. If Hecox’s sex is legally defined as male, Sotomayor argued, the exclusion still creates discrimination.
“It’s still an exception,” Sotomayor said. “It’s a subclass of people who are covered by the law and others are not.”
Justice Elena Kagan highlighted the broader implications of the cases, asking whether a ruling for the states would impose a single definition of sex on the 23 states that currently have different laws and standards. The parties acknowledged that scientific research does not yet offer a clear consensus on sex.
“I think the one thing we definitely want to have is complete findings. So that’s why we really were urging to have a full record developed before there were a final judgment of scientific uncertainty,” said Kathleen Harnett, Hecox’s legal representative. “Maybe on a later record, that would come out differently — but I don’t think that—”
“Just play it out a little bit, if there were scientific uncertainty,” Kagan responded.
Justice Brett Kavanaugh focused on the impact such policies could have on cisgender girls, arguing that allowing transgender girls to compete could undermine Title IX’s original purpose.
“For the individual girl who does not make the team or doesn’t get on the stand for the medal or doesn’t make all league, there’s a — there’s a harm there,” Kavanaugh said. “I think we can’t sweep that aside.”
Justice Amy Coney Barrett questioned whether Idaho’s law discriminated based on transgender status or sex.
“Since trans boys can play on boys’ teams, how would we say this discriminates on the basis of transgender status when its effect really only runs towards trans girls and not trans boys?”
Harnett responded, “I think that might be relevant to a, for example, animus point, right, that we’re not a complete exclusion of transgender people. There was an exclusion of transgender women.”
Justice Ketanji Brown Jackson challenged the notion that explicitly excluding transgender people was not discrimination.
“I guess I’m struggling to understand how you can say that this law doesn’t discriminate on the basis of transgender status. The law expressly aims to ensure that transgender women can’t play on women’s sports teams… it treats transgender women different than — than cis-women, doesn’t it?”
Idaho Solicitor General Alan Hurst urged the court to uphold his state’s ban, arguing that allowing participation based on gender identity — regardless of medical intervention — would deny opportunities to girls protected under federal law.
Hurst emphasized that biological “sex is what matters in sports,” not gender identity, citing scientific evidence that people assigned male at birth are predisposed to athletic advantages.
Joshua Block, representing B.P.J., was asked whether a ruling in their favor would redefine sex under federal law.
“I don’t think the purpose of Title IX is to have an accurate definition of sex,” Block said. “I think the purpose is to make sure sex isn’t being used to deny opportunities.”
Becky Pepper-Jackson, identified as plaintiff B.P.J., the 15-year-old also spoke out.
“I play for my school for the same reason other kids on my track team do — to make friends, have fun, and challenge myself through practice and teamwork,” said Pepper-Jackson. “And all I’ve ever wanted was the same opportunities as my peers. But in 2021, politicians in my state passed a law banning me — the only transgender student athlete in the entire state — from playing as who I really am. This is unfair to me and every transgender kid who just wants the freedom to be themselves.”
Outside the court, advocates echoed those concerns as the justices deliberated.
“Becky simply wants to be with her teammates on the track and field team, to experience the camaraderie and many documented benefits of participating in team sports,” said Sasha Buchert, counsel and Nonbinary & Transgender Rights Project director at Lambda Legal. “It has been amply proven that participating in team sports equips youth with a myriad of skills — in leadership, teamwork, confidence, and health. On the other hand, denying a student the ability to participate is not only discriminatory but harmful to a student’s self-esteem, sending a message that they are not good enough and deserve to be excluded. That is the argument we made today and that we hope resonated with the justices of the Supreme Court.”
“This case is about the ability of transgender youth like Becky to participate in our schools and communities,” said Joshua Block, senior counsel for the ACLU’s LGBTQ & HIV Project. “School athletics are fundamentally educational programs, but West Virginia’s law completely excluded Becky from her school’s entire athletic program even when there is no connection to alleged concerns about fairness or safety. As the lower court recognized, forcing Becky to either give up sports or play on the boys’ team — in contradiction of who she is at school, at home, and across her life — is really no choice at all. We are glad to stand with her and her family to defend her rights, and the rights of every young person, to be included as a member of their school community, at the Supreme Court.”
The Supreme Court is expected to issue rulings in both cases by the end of June.
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