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DADT: Celebrate Certification But Remember Our Equality March Is Long

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Tanya Domi and Clinton Fein met 20 years ago when acclaimed author Randy Shilts was writing his tour de force book, “Conduct Unbecoming: Gays and Lesbians in the U.S. Military,” the 1993 historical account of gays who had served in the military. Domi was a subject of the book and Fein was the digital artist and producer of a companion CD-ROM which contained interviews of some of the veterans depicted in the book. Today, Domi and Fein are thinking of Randy Shilts and his legacy work. Shilts died in 1994 from AIDS.

A conversation.

TANYA: Clinton, while the entire country is seized with the debt ceiling crisis, we can for the moment celebrate today’s decision by the Obama Administration to certify Don’t Ask Don’t Tell (DADT), indicating to the Congress that the Department of Defense is ready to accept openly gay soldiers in the military. It is long, long overdue and feels anticlimactic to me, especially in light of the facts. During President Obama’s tenure approximately 700 soldiers have been discharged under DADT and America is a minority among our allies on gay equality in the military. For example, Britain and Canada have had openly gay soldiers serving since the early 1990s. Even Poland’s military has a non-discrimination policy.

When the history books are written about the repeal process, it will be a historical account about America’s intolerance of gays and Obama’s agonizing leadership style. The White House had to be pressured and fortunately GetEQUAL delivered the requisite pain, forcing the Administration’s hand to repeal one year earlier than originally planned.

Whatever happened to American pluck and “can-do”? It seems to have dissipated along with America’s bankrupt politics and treasury. I am ashamed that our country had to be dragged kicking and screaming through an excruciating process, supported by countless empirical studies, before repealing DADT. At its very core, DADT is thoroughly anti-American, particularly with respect to First Amendment rights. Let the record reflect that in the U.S. we do regulate, even censor speech as it relates to sexual orientation.

Let there also be no doubt that the Log Cabin Republican case, subject of a recent flurry of action in the Ninth Circuit Court of Appeals, also provided necessary pressure enabling certification today.

The Department of Justice’s request for an emergency injunction last week to reinstate DADT followed the 9th Circuit’s decision on July 6 directing the Pentagon’s to cease enforcement of the policy was a low moment for the community and its relationship with the Obama Administration (more about the enablers and apologists later).

CLINTON: I agree with you – the certification for the repeal is anti-climactic. It took me a while to wrap my head around what was going on with DADT in last week’s development in the Ninth Circuit.

Something had to happen, given the glacial pace of certification of the DADT repeal. As of today, despite the repeal, servicemembers are still being discharged for being gay. Four that we know of since the repeal, but even one, at this point, is one too many. Now that the Pentagon is set to announce certification of the repeal today, there is still an inexplicable 60-day wait before it actually takes effect. Given the way this repeal has been handled to date, I wouldn’t be the least bit surprised if we see servicemembers discharged for being gay in the next 60 days.

Sergeant 1st Class Leroy Arthur Petry, who was just awarded a Medal of Honor, was deployed eight times with two tours to Iraq and six tours to Afghanistan. We are engaged in three wars (officially). How dare anyone claiming to care about national security think we are in a position to discharge servicemembers for being gay?  I’m glad you mentioned the manufactured debt ceiling crisis, because it’s the same fundamental inability to grasp reality that has the likes of John Boehner focused on overturning the repeal of DADT and bringing federal abortion legislation to the floor, when he should be focused on creating jobs – not spending money to eliminate them by trying to fire committed servicemembers we spent a fortune training to begin with.

TANYA:  Everyone should keep in mind that DADT as a policy is not over until the 60 days has expired, absent further interference by the Congress. Indeed Howard McKeon, chair of the House Armed Services Committee issued a statement this afternoon expressing his “disappointment that Obama has not properly addressed the concerns of the military service chiefs” (don’t expect them to give up).

Lawyers are advising service members not to come out until the 60 days has officially expired. The Log Cabin Republican case may be mooted, but that remains an open question, as only time will tell. We could obtain a future decision that speaks to broader constitutional rights of LGBT persons, which the government is clearly trying to avoid.

Bridget Wilson, a San Diego based attorney-at-law who is a military administrative law expert and an Army veteran (also consulting counsel to Servicemembers Legal Defense Network), shared with me earlier this week her view that the Ninth Circuit’s response to the government’s injunction indicated that they were not pleased that the government was trying to have their cake and eat it too. Wilson said, “I was rather amused by the latest court missive in which the stay was lifted in part but still prohibits the government from investigating, processing or discharging service members under DADT. It was rather a ‘screw you’ to the government in the case. Sure, you can argue your case, but we will hold your feet to fire and not let you use the opportunity to purge a few more”.

“The Ninth Circuit does not appear to be buying the government’s argument. But remember this is primarily [emanating from Chief Judge] Alex Kosinski, The Ninth is no longer the ‘liberal’ circuit. For example, Judge Jay Bybee of the ‘torture memo‘ was appointed by President George W. Bush.”

Wilson added, “I think the slow crawl through the Pentagon has not helped them.” Indeed, the slow rollout has been an agonizing process to monitor, while most Americans thought the deed was actually done in December. Obama brilliantly framed DADT as repealed, without explaining the next two steps before gays were actually freed.

CLINTON: The legal machinations are pretty complicated, but the government’s move to fight the Ninth Circuit’s ruling suggests that a definitive ruling by the courts that DADT is unconstitutional is critical.

And not because I’m a lawyer – I’m not – but because the historically the courts have always given deference to the military. Having looked at the documents being filed by the government, their reasoning is crafty and cunning. Essentially they seem to be arguing that there isn’t a controversy here because Don’t Ask, Don’t Tell is in the process of being repealed as Congress had intended. They argue that interference by the courts in a process that’s already underway would undermine the whole repeal process as envisioned and articulated by congress.

I believe that since there are already efforts by certain members of Congress to either rescind the DADT repeal or render it toothless, the Congressional repeal alone is not enough. A ruling on its constitutionality by the court would add a very important weapon into the arsenal against any attempts to reverse course. And given that Michelle Bachmann, Newt Gingrich, Tim Pawlenty, Mitt Romney, and Rick Santorum have all publicly stated that as President they would support reinstatement of DADT – unlikely as some of them are as contenders – the prospect of a different Administration or congress reinstating DADT is very real. We seem to be going backwards as a country in every other sphere.

The days of just accepting anything Obama does as strategy, and warnings against any attempts to call him on his bullshit are indefensible. I know there will be those who argue that we are politically naïve by refusing to so simply give Obama the benefit of the doubt. But if there’s a legitimate strategy behind requesting a stay on this demand to cease implementing DADT, the President, or his minions need to come forward and explain it. And what the pros and cons are before unilaterally making these decisions that don’t, on their face, make any sense at all.

TANYA:  When I spoke to Wilson yesterday as the news broke that the Pentagon would certify today, she added:  “…this will be used to bolster the government’s claim that the case is moot. It is my sense that this is what is motivating it”. She also made a point of asserting that the Administration has needlessly advanced the “Rehnquist Doctrine”, considered an overly broad legal approach taken by federal judges on due deference to the military that has effectively capitulated federal court review of military policies(a subject of a future blog). A sobering notion asserted by Wilson is that it is clear that the longest legal rollouts with respect to implementation in our country’s history is in the arena of civil rights.  In other words, this process will take many, many years to come.

Affirming Wilson, many gay activists are convinced that the Obama government does not want the Courts to establish sexual orientation as a protected class because it would open the door in the military to future law suits by those seeking redress for damages.

I already feel the pain of our gay soldiers—despite the repeal, they remain second-class and must be prepared to render service absent medical benefits for their families, on-base housing and the minimal perks that go along with these small, but important measures that provide support to all other military families.

Add in the complicity of gay politicos like David Smith of the Human Rights Campaign and Winnie Stachelberg, formerly with HRC, now with the Center for American Progress, who both eagerly carried the White House’s political “water” to the detriment of gay service members. Strachelberg personally negotiated away the non-discrimination clause from the House version of the bill and proudly took credit for it, when the White House yielded to the Pentagon’s demand for no protections.

Neither of these political insiders has a realistic clue about the life of a soldier, nor about the sacrifices military families must endure.  Smith and Stachelberg’s unprincipled leadership and complicity should be noted for posterity sake.

CLINTON: That’s unfortunate. Once again these morons having the audacity to make deals on behalf of communities that don’t respect them nor want them doing anything in their name. If I remember correctly, Stachelberg was one of those “saviors” who signed onto the original DADT policy as a reasonable compromise.

The notion that allowing this decision to stand would open the door to restitution and other punitive actions is legitimate, but I think that if a lawsuit was filed on that basis, the government could argue that it was implementing a policy that had been ordered by congress and signed into law by President Clinton. A court could side with the administration and say that in view of the fact the military was adhering to the policy, it cannot be held retroactively responsible for damages that occurred or actions that were taken prior to the repeal.

When President Truman signed his Executive Order in 1948, he too could have refrained, claiming the only reason he wanted to defend segregation in the armed forces was to avoid responsibility for damages or actions taken prior. In my mind it’s worth the risk. Even if, in the end, a court rules that gays and lesbians are indeed entitled to full compensation and repayment of their tuition costs, then so be it.

We don’t deny people civil rights on the basis that providing them is too expensive. Imagine if that was used as a justification for the continuation of Apartheid.

TANYA: Defenders of the Administration are already engaged like Sue Fulton of Knights Out, who was recently named by Obama to West Point’s Board of Visitors. Last night she said that the certification was timely as planned by the White House. Let’s hope Fulton will be as quick to criticize Obama during post-repeal, especially in light of DoD’s overly reliant leadership driven, no anti-discrimination policy for gay soldiers. We will be watching too.

CLINTON: While I am pleased this process is moving forward, snail-paced as it may be, we can still expect the die-hard, pseudo-religious hater on the right, along with the self-loathing Auntie Toms at GOProud to be screeching like turkeys on Thanksgiving in their racist hatred of Obama, masked in “conservatism”. But that’s another conversation I look forward to having with you.

 

Tanya L. Domi is an Adjunct Assistant Professor of International and Public Affairs at Columbia University, who teaches about human rights in Eurasia and is a Harriman Institute affiliated faculty member. Prior to teaching at Columbia, Domi worked internationally for more than a decade on issues related to democratic transitional development, including political and media development, human rights, gender issues, sex trafficking, and media freedom.

Clinton Fein is an internationally acclaimed author, artist, and First Amendment activist, best-​known for his 1997 First Amendment Supreme Court victory against United States Attorney General Janet Reno. Fein has also gained international recognition for his Annoy​.com site, and for his work as a political artist. Fein is on the Board of Directors of the First Amendment Project, “a nonprofit advocacy organization dedicated to protecting and promoting freedom of information, expression, and petition.” Fein’s political and privacy activism have been widely covered around the world. His work also led him to be nominated for a 2001 PEN/Newman’s Own First Amendment Award.

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COMMENTARY

Trump Vows to Use DOJ and Congress to Make Being Transgender Illegal While Promoting the ‘Nuclear Family’

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As part of his 2024 campaign, Donald Trump is now declaring war against transgender people – especially transgender children – even vowing to use DOJ and Congress to make being transgender illegal under federal law, if elected President. He also promised to promote the “nuclear family,” an attack on same-sex couples and families. And he pledged to use the Dept. of Education to file federal civil rights charges against local school teachers who support transgender children – or even the very concept of being transgender.

In 2015, as his first presidential campaign took shape, Trump was falsely hailed by some LGBTQ Republicans as being “pro-gay.” In 2016, for a short while, Trump said transgender people should “use the bathroom they feel is appropriate,” although less than 24 hours later he reversed course. But that same year he merged two powerful culture war issues, LGBTQ rights and illegal immigration, into a combined wedge issue to attack his Democratic opponent.

“Thank you to the LGBT community! I will fight for you while Hillary brings in more people that will threaten your freedoms and beliefs,” he tweeted.

It was a lie.

Fast forward to 2023.

Trump’s promise on Tuesday afternoon to attack transgender Americans, despite medical evidence and expert opinions to the contrary. go much further than any other national Republican’s, and it’s clear he had help creating these new anti-LGBTQ policies. Right-wing extremist media promoted the ex-president’s assault on this highly-vulnerable population almost immediately.

READ MORE: Another SCOTUS Scandal: Chief Justice’s Spouse Makes Millions Placing Attorneys at Top Law Firms That Argue Before the Court

In his video he calls gender-affirming care “child sexual mutilation” and “left wing gender insanity,” suggesting transgender people did not exist throughout history, which is false.

“The left wing gender insanity being pushed in our children is an act of child abuse very simple,” Trump, in his unique oratorical style, begins in a nearly four-minute video posted on Rumble and on his Truth Social platform. “Here’s my plan to stop the chemical, physical and emotional mutilation of our youth.”

Nearly every major medical organization recognizes and supports gender-affirming care for children.

Just last August Dr. Moira Szilagyi, the president of the American Academy of Pediatrics, the largest professional organization of its kind, said: “There is strong consensus among the most prominent medical organizations worldwide that evidence-based, gender-affirming care for transgender children and adolescents is medically necessary and appropriate. It can even be lifesaving. The decision of whether and when to start gender-affirming treatment, which does not necessarily lead to hormone therapy or surgery, is personal and involves careful consideration by each patient and their family.”

Trump is promising to make that care illegal, and to sign a federal law “establishing that the only genders recognized by the United States government are male and female, and they are assigned at birth,” and one “prohibiting child sexual mutilation.”

“On day one,” Trump declared, “I will revoke Joe Biden’s cruel policies on so called gender affirming care. Ridiculous, a process that includes giving puberty blockers, mutating their physical appearance and ultimately performing surgery on minor children. Can you believe this?”

Dr. Szilagyi spoke to that falsehood last year, writing: “Critics of our gender-affirming care policy mischaracterize it as pushing medical or surgical treatments on youth; in fact, the policy calls for the opposite: a holistic, collaborative, compassionate approach to care with no end goal or agenda.”

Trump also promised to “sign a new executive order instructing every federal agency to cease all programs that promote the concept of sex and gender transition at any age. I will then ask Congress to permanently stop federal taxpayer dollars from being used to promote or pay for these procedures and pass a law prohibiting child sexual mutilation.”

“In all 50 states it’ll go very quickly. I will declare that any hospital or health care provider that participates in the chemical or physical mutilation of minor youth will no longer meet federal health and safety standards for Medicaid and Medicare and will be terminated from the program immediately.”

READ MORE: ‘Ran a Bribery Center Blocks From the White House’: Comer Mocked for Claiming No Evidence of Trump Influence Peddling

Trump also promised to turn the executive branch into an anti-transgender machine for his personal political ends.

“The Department of Justice will investigate Big Pharma and the big hospital networks to determine whether they have deliberately covered up horrific long term side effects of sex transitions in order to get rich at the expense of vulnerable patients, in this case, very vulnerable. We will also investigate whether Big Pharma or others have illegally marketed hormones and puberty blockers which are in no way licensed or approved for this use.”

He also promised his “Department of Education will inform states and school districts that if any teacher or school official suggests to a child that they could be trapped in the wrong body, they will be faced with severe consequences including potential civil rights violations for sex discrimination, and the elimination of federal funding.”

Trump did not waver in using the full power of the federal government to target and attack transgender children and LGBTQ families, while using local school teachers to carry out his pogrom.

READ MORE: $1 Billion Campaign From Group ‘Linked to Staunchly Conservative Causes’ Will Try to ‘Redeem Jesus’ Brand’ in Super Bowl Ads

“As part of our new credentialing body for teachers, we will promote positive education about the nuclear family, the roles of mothers and fathers and celebrating rather than erasing the things that make men and women different and unique.”

“I will ask Congress to pass a bill establishing that the only genders recognized by the United States government are male and female, and they are assigned at birth. The bill will also make clear that Title IX prohibits men from participating in women’s sports and we will protect the rights of parents from being forced to allow their minor child to assume a gender which is new and an identity without the parents’ consent,” he said, appearing to correct himself by adding: “The identity will not be new, and it will not be without parental consent.”

“No serious countries should be telling its children that they were born with the wrong gender, a concept that was never heard of in all of human history, he declared, which is false. “Nobody’s ever heard of this, what’s happening today. It was all when the radical left invented just a few years ago, under my leadership this madness will end.”

Nearly every anti-LGBTQ claim Trump made in under four minutes is false or contrary to accepted medical and scientific studies and practice.

 

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Trump Could ‘Screw’ GOP With Self-Enriching Third Party Run: Conservative Author

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Former President Donald Trump is able to “screw” his own party with an independent or third-party run should they reject him in 2024, wrote conservative author Jonathan Last for The Bulwark on Wednesday.

Trump is currently the only Republican who has formally declared his candidacy for president, although multiple others like New Hampshire Gov. Chris Sununu and former U.N. Ambassador Nikki Haley have expressed interest. Trump mainly appears focused on heading off a challenge from Florida Gov. Ron DeSantis, attacking him as a “RINO globalist.”

“Sarah [Longwell] made a bunch of news this morning with her poll about Always Trumpers. I’m sure you’ve seen it. If not, the most interesting number is that 28 percent of Republican respondents said they’d vote for Trump over either an R or a D if he made a third-party run in 2024,” said the report. “Certain members of the Match Throwing Club . . . scoffed at this idea. Ross Douthat explains that, ‘Trump is unlikely to run third party and 28 percent of the GOP primary base isn’t actually going to vote for a spoiler if it’s DeSantis v. Biden.'”

This analysis, said Last, is just “wishcasting” — because Trump doesn’t actually need to pull 28 percent of the vote to spoil the election. Just a few points could do it, given how close the last two presidential elections ended up being.

READ MORE: Lead investigator blows the whistle on key finding Jan. 6 committee ignored in final report

It’s impossible to know for sure whether Trump would actually run third party if he lost the nomination, wrote Last — however, “I do know that if Trump were to lose the Republican nominating contest, he could bring in a lot of money by running a third-party campaign. And if the question is: ‘Trump could make a lot of money by doing X; will he do X?’ Well, then the answer is usually: Yes.”

Notably, polling doesn’t indicate that it’s likely Trump will lose the GOP nomination in the first place, with recent Morning Consult numbers suggesting he leads the pack by 17 points.

 

Image via Shutterstock

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Santos Campaign Can No Longer Raise or Spend Money After Treasurer Officially Calls It Quits: NYT

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Enmeshed in a web of deceit and possibly under federal criminal investigation, U.S. Rep. George Santos (R-NY) is now apparently unable to lawfully spend money or accept donations via his political campaign, which reportedly now may also be in violation of FEC rules.

On Tuesday the embattled freshman Republican announced he was temporarily stepping down from his committee assignments, reportedly after a conversation with Speaker Kevin McCarthy. Before the end of the day his campaign treasurer filed official paperwork notifying the Federal Election Commission she had resigned.

“Nancy Marks’s resignation effectively leaves the Santos campaign unable to raise or spend money and in seeming violation of federal rules,” The New York Times reports, calling her his “longtime campaign treasurer and trusted aide.”

“Mr. Santos’s financial operations, which are the subject of several complaints filed with the F.E.C. and are being investigated by local, state and federal law enforcement,” The Times adds. “It also leaves the Santos campaign in disarray, effectively rendering it unable to raise or spend money and placing it in seeming violation of F.E.C. rules.”

READ MORE: Another SCOTUS Scandal: Chief Justice’s Spouse Makes Millions Placing Attorneys at Top Law Firms That Argue Before the Court

In fact, FEC rules state: “If a committee’s treasurer is absent, the committee cannot make expenditures or accept contributions unless it has designated an assistant treasurer or designated agent on the committee’s Statement of Organization.”

The resignation comes after last week’s stunning report revealing that Santos, or his campaign, amended FEC filings to indicate the $700,000 he had claimed to have personally loaned his campaign had not actually come from his personal funds.

Unlike political candidates, campaign treasurers are held to an actual standard of truth, and can be personally – and legally – liable if they report false information.

FEC rules also state, “the treasurer can be named and found liable in his or her personal capacity if he or she knowingly and willfully violates the Act, recklessly fails to fulfill duties imposed by the law, or intentionally deprives himself or herself of the operative facts giving rise to the violation.”

READ MORE: Stefanik Was Once ‘Laser Focused on Electing Santos’ – Now She Blames Voters for Electing Him as She Backs Away

Santos may find it difficult to hire a new treasurer: “Even when an enforcement action alleges violations that occurred during the term of a previous treasurer, the Commission usually names the current treasurer as a respondent in the action.”

The Times adds, “The lack of clarity over who, if anyone, is operating as Mr. Santos’s treasurer has already caused confusion. On Tuesday, a joint fund-raising committee associated with Mr. Santos filed paperwork to end its operations. Ms. Marks’s signature was on the paperwork, even though she had resigned as the committee’s treasurer the week before.”

Marks’ resignation also comes after someone affiliated with the Santos campaign falsely listed a well-known Republican treasurer on the official FEC forms as the treasurer for his campaign. As one expert put it, that’s a “big no-no,” and “completely illegal.”

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