sexual orientation

The Servicemembers Legal Defense Network (SLDN) has created a new legal guide, Freedom to Serve: The Definitive Guide to LGBT Military Service, to help navigate the laws and policies related to military service that will exist following the repeal of Don’t Ask, Don’t Tell (DADT). It is downloadable at www.sldn.org, the SLDN website which has been redesigned for the post-DADT environment. The guide and website cover SLDN’s legal services, and issues such as standards of conduct, benefits for spouses and families of service members, discharge upgrades, and veterans’ benefits.

SLDN Legal Director David McKean:

The information contained in this legal guide will help service members, prospective service members, their families, and friends make informed decisions about how to serve successfully as we move beyond ‘Don’t Ask, Don’t Tell.’ It will also assist them in understanding how to protect themselves when necessary and how to respond if they are targeted in any way for their actual or perceived sexual orientation or gender identity.

The new guidance will become effective on September 20 when the DADT repeal goes into effect. The clock is ticking.

In October and December of 2010, the Department of Education took a stand for LGBT youth by issuing guidance to address bullying in schools, especially as it relates to federal education anti-discrimination laws. One of those laws, Title IX of the Education Amendments of 1972 (Title IX), prohibits discrimination on the basis of sex. While the language does not specify sexual orientation and gender identity, the Department has made clear that harassment on these grounds, under certain circumstances, violates Title IX.

Yesterday, the Department of Education released new guidance, this time focusing on the right of students under the Equal Access Act to form extracurricular clubs, including gay-straight alliances (GSAs).

Secretary Arne Duncan:

Gay-straight alliances (GSAs) and similar student-initiated groups addressing LGBT issues can play an important role in promoting safer schools and creating more welcoming learning environments. Nationwide, students are forming these groups in part to combat bullying and harassment of LGBT students and to promote understanding and respect in the school community. Although the efforts of these groups focus primarily on the needs of LGBT students, students who have LGBT family members and friends, and students who are perceived to be LGBT, messages of respect, tolerance, and inclusion benefit all our students. By encouraging dialogue and providing supportive resources, these groups can help make schools safe and affirming environments for everyone.

[ . . . ]

It is important to remember, therefore, that the Equal Access Act’s requirements are a bare legal minimum. I invite and encourage you to go beyond what the law requires in order to increase students’ sense of belonging in the school and to help students, teachers, and parents recognize the core values behind our principles of free speech.

The announcement was met with strong support across the safe schools community.

Eliza Byard, Executive Director, Gay, Lesbian, and Straight Education Network:

Secretary Duncan's Dear Colleague letter is a clear signal to schools and school districts that they may not discriminate against students who seek to form Gay-Straight Alliances. We are grateful to the Department of Education for supporting students' rights, attempting to prevent discrimination and affirming the positive contributions Gay-Straight Alliances make to the life of our schools, right alongside other non-curricular clubs.

Laura Murphy, Director, ACLU Washington Legislative Office:

Gay-straight alliances can play a crucial role in improving students’ lives. Just as with other extra-curricular groups and clubs, students have a federal legal right to form GSAs. Our public schools should be promoting fairness and acceptance, not discrimination.

Human Rights Campaign:

Gay-Straight Alliances are powerful forces in our schools. Not only do they offer a safe and supportive environment for LGBT students but they allow straight allies to show their support. One of the most powerful impacts that a GSA can have, however, is on those students who aren't even members - the very existence of a GSA shows students who may still be coming to terms with their orientations that someone at their school cares.

PFAW agrees that every student, LGBT or not, has the right to be educated in the same way, including equal access to extracurricular clubs. Click here and here for more information.

Tennessee really seems to be going down the rabbit hole with their recent anti-gay legislation. Last month, a bill advanced to their state Senate, the “Don’t Say Gay” bill, which would prohibit educators from discussing any sexual orientation other than heterosexuality with students in kindergarten through eighth grade. This not only applies to lessons in classrooms, but to all discussions between educators and students. Any acknowledgement that gay people exist is officially prohibited, a cruel effort to isolate and declare as abnormal any children who are gay or who have gay family members (including parents).

This week, Gov. Bill Haslam signed a bill prohibiting local governments from enacting anti-discrimination laws that are stricter than those in state law. This new law overturns the recent Nashville Metro Council ordinance requiring businesses contracting with the city to prohibit discrimination based on sexual orientation and gender identity. Tennessee state law prohibits discrimination based on race, creed, color, religion, sex, age, or national origin, but that leaves out a number of groups who are still facing discrimination with no legal support.

Haslam told a reporter, "We're not in favor of discrimination in any form at all," but actions speak louder than words, and Haslam’s support of this legislation certainly screams out loud and clear.

Nashville attorney Abby Rubenfeld is currently putting together a lawsuit to fight this legislation. She notes that the bill is homophobic and targeted at LGBT workers, but it would also affect veterans, disabled people, and other groups that aren’t protected by the state anti-discrimination law.

This morning, Rep. Trent Franks, chairman of the House Judiciary Subcommittee on the Constitution, called a hearing on “Defending Marriage” to examine the Obama Administration’s decision to stop defending the so-called “Defense of Marriage Act” in courts.

Franks is pretty, um, far to the right, so it’s no surprise that one of the three witnesses he called to the hearing was Maggie Gallagher, chair of the National Organization for Marriage.

As Justin wrote earlier, Gallagher hit a bunch of the big themes of the Religious Right’s anti-gay activism, but she also dwelled on one argument peculiar to the anti-marriage equality crowd: that marriage exists solely as a structure for procreation:

If we accept, as DOMA explicitly does, that this is a core purpose of marriage, then treating same-sex unions as marriages makes little sense. If marriage as a public and legal institution is oriented towards protecting children by increasing the likelihood they are born to and raised by the man and the woman whose union made them, then same-sex couples do not fit. If same-sex couples “fit” the public definition of marriage, then marriage is no longer about responsible procreation. Same-sex marriage cuts marriage as a public idea off from these deep roots in the natural family. Over time the law will re-educate the next generation that these ancient and honorable ideals underlying marriage no longer apply. Gay marriage, as Judge Walker ruled in wrongly striking down Prop 8, is based on the idea that neither biology nor gender matters to children. Same-sex marriage repudiates the public’s interest in trying to see that children are, to the extent possible, raised by the man and woman whose bodies made them in a loving single family.

The argument that marriage exists solely for having children is, needless to say, flimsy – and has been pretty well demolished in a few marriage equality trials. I’m just going to share this extended exchange from last year’s Proposition 8 trial, in which Judge Vaughn Walker reduces the lawyer defending Prop 8 into babbling incoherence as he tries to defend the marriage-is-only-for-procreation argument:

THE COURT: And my point was that there are a number of heterosexual couples who do not naturally procreate, who require the intervention of some third party or some medical assistance of some kind.

MR. COOPER: Yes, your Honor. And it is not those opposite-sex couples either that the state is concerned about in terms of -- in terms of the threats to society and the natural concerns that society has from irresponsible procreation.

THE COURT: What's the threat to society of people choosing to have medical assistance in order to conceive children?

MR. COOPER: There isn't one there, your Honor. I mean, it's -- it is the -- again, it's irresponsible procreation. The procreation that comes about casually. And often again, as the Eighth Circuit put it, often by accident, unintentionally, unintentionally. The opposite-sex couple where one of the partners is infertile, for example, or the same-sex couple can't unintentionally procreate, but for reasons that we discussed earlier with respect to the opposite sex but infertile couple, allowing them to marry isn't something that is inconsistent with the purposes of -- the core procreative purposes of marriage and, in fact, in certain respects it advances those purposes and it would just not be possible or realistic, as case after case has said, for the state to try to implement its policy on a more narrow or fitted basis.

And, your Honor, with respect to -- and you asked a question about this in your written questions. Even with respect to the opposite-sex couple where one of the partners is infertile, encouraging that couple to get married, trying to channel that couple into marriage furthers the procreative purposes and policies underlying the traditional definition of marriage in the sense that if that couple gets married, then it -- then all of the social norms that come with marriage to encourage that couple to stay together and to be faithful to one another operate to society's benefit in the sense that the fertile member of that couple will be less likely to engage in sexual relationships with third parties and raise anew a threat of some type of unintentional or what I have been referring to previously as irresponsible procreation.

THE COURT: Why don't those same values, which are values to society that you have described, apply to lesbian couples and gay couples? Coming together, supporting one another, taking care of one another, looking out for one another, being an economic unit, being a social unit, providing love, comfort and support for one another, why don't all of those considerations apply just as much to the plaintiffs here as they apply to John and Jane Doe, to use the names that Reverend Tam used.

MR. COOPER: Those purposes, your Honor, are – we haven't suggested there is a distinction among gay and opposite-sex couples with respect to those considerations. There is a distinction, however, with respect to the fundamental procreative purpose, responsible procreative purpose of marriage; and that is that the gay couple, unlike the opposite-sex couple where one of the partners may be infertile, doesn't represent -- neither partner in the – with respect to the same-sex couple is -- again, assuming homosexual sexual orientation -- represents a concern about irresponsible procreation with a third party.

To summarize, Cooper, when pressed on the issue, ended up arguing that opposite-sex couples should get married so they don’t go around “irresponsibly procreating” with people they aren’t married to…but same-sex couples aren’t in danger of irresponsibly procreating, so they don’t need to get married….and that somehow, if gay couples were to get married, they would drive heterosexuals away from marriage, resulting in them having babies out of wedlock.

To be clear, this is the primary argument that opponents of marriage equality have in their toolkit.
 

In a step forward for LGBT equality, the Obama Administration's new hospital visitation regulations go into effect today. Under the rules, hospitals that participate in Medicare and Medicaid can no longer deny visitation privileges based on factors including sexual orientation or gender identity. To forcibly separate loving couples when one of them is sick or even dying is cruel and wrong.

The Deputy Director of the White House Office of Public Engagement writes:

This significant policy change is due in no small part to the journeys of two incredibly courageous and passionate women, Janice Langbehn and Charlene Strong. Both lived through unimaginable experiences with the loss of their wives and life partners. While I never had the opportunity to meet Janice's wife Lisa Pond, or Charlene's wife Kate Fleming, I have had the honor to meet and work with Janice and Charlene. I want to thank them for bringing us all into their lives and for sharing themselves and their families with us, and for using their voices to make lives better for LGBT families.

To have a White House publication referring to "Janice's wife Lisa" or "Charlene's wife Kate" is no small indication of societal change. Words have power, and the more people get used to hearing juxtapositions like these, the less alien the idea becomes.

People For the American Way attended today’s enrollment ceremony for the Don’t Ask, Don’t Tell repeal bill. Representatives and Senators stood alongside those discharged under this discriminatory policy to formally send the bill to President Obama for his signing. Each should be commended for their dedication to this cause, especially Representative Patrick Murphy (D-PA8), a veteran himself and the lead House sponsor of the Don't Ask, Don't Tell Repeal Act of 2010. From CNN:

Earlier, Democratic Rep. Patrick Murphy of Pennsylvania told the gathering of an e-mail he received from a company commander in Afghanistan, who mentioned how he often had to counsel soldiers who received divorce papers or "Dear John" letters from spouses or opposite-sex partners.

Murphy continued: "This young company commander, this captain, on his fourth deployment, wrote in that e-mail saying, 'I never thought I'd see the day when I got one of those letters myself. And I'm sitting here at three o'clock in the morning in Kabul, Afghanistan, and I have no where to go because I happen to be gay, and I can't walk to the chaplain, and I can't go to a battle buddy, and I can't walk to my commander's office, so I'm sitting here cradling my 9 mm pistol thinking about blowing my brains out. But I read this article about this Iraq war veteran named Patrick Murphy from Pennsylvania that's fighting for me, and it gives me hope.'"

House Majority Leader Steny Hoyer (D-MD5) had this to say about the American promise of equality for all.

Perhaps the most memorable sound bites came from, as they often do, Representative Barney Frank (D-MA4).

This one, in particular.

For those who are worried about the radial homosexual agenda, let me put them on notice – two down, two to go.

Representative Frank’s message is simple.

LGBT equality advocates aren’t working some nefarious plot. What the Right labels as radical isn’t radical at all. It’s about fairness, freedom, and the Constitution. It’s about core values and fundamental rights that all Americans, regardless of sexual orientation or gender identity, hold dear and should enjoy.

A new poll from ABC News and the Washington Post shows that a staggering 77% of Americans believe that Congress should let gay and lesbian Americans serve openly in the military. The poll, conducted from December 9 to 12, reflects previous surveys that show overwhelming support for repealing the military’s Don’t Ask Don’t Tell policy. Even self-described Republicans (74%), conservatives (67%), and white evangelical Christians (70%) believe that gay and lesbian soldiers who publicly disclose their sexual orientation should be allowed to serve.

Just as the vast majority of Americans think that the military should not discriminate against gay and lesbian soldiers, a Pentagon study showed that the majority of military service members do not oppose repealing Don’t Ask Don’t Tell.

Today the House of Representatives is set to vote today on a stand-alone bill to repeal Don’t Ask Don’t Tell introduced by Congressmen Steny Hoyer (D-MD) and Patrick Murphy (D-PA), an Iraq war veteran. If the bill wins approval in the House, the measure will be taken up in the Senate with the support of a bipartisan group of Senators.

With the military leadership and service members and the American people all in agreement that it is time to drop Don’t Ask Don’t Tell, the only thing that stands in the way of the discriminatory policy’s repeal are Senate Republicans who want to obstruct legislative action no matter the cost.

Opposition to the repeal of Don’t Ask Don’t Tell has ranged from subtle and outright homophobia to claims that the House, in passing repeal, was “dissing the troops.” Many Republican senators who voted to stop the repeal of Don’t Ask Don’t Tell from coming to a vote earlier this year said that they were uncomfortable with voting for or against repeal until the Pentagon completed its study of the policy.  The study, released today, finds that an overwhelming majority of both soldiers and their spouses had absolutely no problem with letting gay and lesbian soldiers serve openly. The report found that “69 percent — believed they had already worked with a gay man or woman, and of those the vast majority — 92 percent — reported that the unit’s ability to work together was very good, good or ‘neither good nor poor.’” The authors of the report, Jeh C. Johnson, the Pentagon’s chief counsel, and Gen. Carter F. Ham, the commander of the United States Army in Europe, even wrote that “we are both convinced that our military can do this, even during this time of war.”

Now that the Pentagon has conclusively found that unit cohesion and effectiveness won’t be jeopardized by a repeal of Don’t Ask Don’t Tell, it is important to remember the Republican senators who said Congress should wait for the report before an up or down vote on repealing DADT.

Mark Kirk (R-IL):

I think we should wait for the Joint Chiefs of Staff to report. This was actually the recommendation of Secretary Gates and the President, but Speaker Pelosi wanted to move forward anyway. The problem here is that when you remove the policy, you got to have a new policy….I’m going to read every word of that study.

Scott Brown (R-MA):

I am keeping an open mind, but I do not support moving ahead until I am able to finish my review, the Pentagon completes its study, and we can be assured that a new policy can be implemented without jeopardizing the mission of our military.

Olympia Snowe (R-ME):

Moreover, as I have previously stated, given that the law implementing the “Don’t Ask, Don’t Tell” policy has been in place for nearly 17 years, I agree that it is overdue for a thorough review. The question is, whether we should be voting on this issue before we have the benefit of the comprehensive review that President Obama’s Secretary of Defense ordered in March, to secure the input of our men and women in uniform during this time of war – as the Joint Chiefs of Staff from all of the services have requested prior to any vote. We should all have the opportunity to review that report which is to be completed on December 1, as we reevaluate this policy and the implementation of any new changes.

John Ensign (R-NV):

“It is my firm belief that Americans, regardless of their sexual orientation, should be able to fight and risk their lives in defense of this great nation. As a nation currently engaged in combat in Afghanistan and Iraq, the focus of all decisions affecting military readiness, recruiting and retention, and unit cohesion should be to maximize the success of ongoing operations.”

Ensign spokesperson Jennifer Cooper reiterated this point: "Senator Ensign is waiting on the report from the Pentagon and the testimony of the military chiefs to see if any changes to this policy can or should be done in a way so as not to harm the readiness or war fighting capabilities of our troops."

Roger Wicker (R-MS):

Congress should refrain from conducting any legislative action on ‘Don’t Ask, Don’t Tell’ until the Defense Department has concluded its comprehensive review of the policy.

Richard Burr (R-NC):

Don't Ask Don't Tell has worked. Now personally I don't see a reason to reverse it. But that's a personal opinion. I think the country should have a debate. And what we should do is we should wait until the Department of Defense has gotten back the survey of those individuals who serve. That survey's back in December. This is not too far off…. Now I'm not scared to have the debate, I welcome the debate, but I'm also very confident that we should time this in a way that makes as little impact on those troops that are deployed as we possibly can.

John Thune (R-SD):

I believe it is in the best interest of our military to allow the DOD to complete its review of the repeal of Don't Ask, Don't Tell, before Congress injects politics into the process.

October 28 marked the one-year anniversary of President Obama’s signing of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. I recently wrote about how honoring Matthew is part of Making It Better. Not only must we make sure that the law bearing his name is effectively implemented, but we must also ensure school safety for LGBT youth – a fact not lost on the Department of Education.

The Department’s Office for Civil Rights has issued guidance to address bullying in schools, especially as it relates to federal education anti-discrimination laws. One of those laws, Title IX of the Education Amendments of 1972 (Title IX), prohibits discrimination on the basis of sex. While the language does not specify sexual orientation and gender identity, the Department has made clear that harassment on these grounds, under certain circumstances, violates Title IX.

Although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) students, from sex discrimination. When students are subjected to harassment on the basis of their LGBT status, they may also [. . .] be subjected to forms of sex discrimination prohibited under Title IX. The fact that the harassment includes anti-LGBT comments or is partly based on the target’s actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy overlapping sexual harassment or gender-based harassment. [. . .] Had the school recognized the conduct as a form of sex discrimination, it could have employed the full range of sanctions (including progressive discipline) and remedies designed to eliminate the hostile environment.

Eliza Byard, Executive Director of the Gay, Lesbian and Straight Education Network, applauded the guidance.

The Departments of Education and Justice are rightly focused on the plight of certain religious students and lesbian, gay, bisexual and transgender students who may not be receiving the full protections from bullying and harassment that are their right. While additional, specific protections are still needed, I commend this Administration for doing all in its power to protect vulnerable students.

David Warren, Director of Education at the Anti-Defamation League, further noted the importance of the guidance.

Federal leadership on this important issue is critical to ensure that schools are safe places for all students, and that they help foster a culture in which bias and bullying are not tolerated. The guidelines will help community members work together to promote a civil and respectful environment for children, online as well as offline.

As did the Human Rights Campaign, who went on to describe next steps.

In order to fully protect LGBT young people, HRC continues to call on the administration to go beyond today’s interpretation of existing law and come out in support of two important pieces of legislation: the Student Non-Discrimination Act and the Safe Schools Improvement Act. The Student Non-Discrimination Act would explicitly prohibit discrimination by schools against public school students on the basis of sexual orientation and gender identity.  The Safe Schools Improvement Act would require schools and districts receiving federal funds to adopt codes of conduct specifically prohibiting bullying and harassment, including on the basis of sexual orientation and gender identity.