Category Archives: American Civil Liberties Union

No DOMA repeal bill until court decision

Rob Portman, United States Senate, Ohio, gay news, Washington Blade

Log Cabin Republicans is expecting Sen. Rob Portman (R-Ohio) to co-sponsor DOMA repeal (Photo public domain)

Lawmakers are holding off on introducing legislation that would repeal the Defense of Marriage Act until after the Supreme Court rules on the anti-gay law, according to multiple sources familiar with the bill, as one Republican LGBT organization expects Sen. Rob Portman (R-Ohio) to sign on as a co-sponsor.

A number of LGBT advocates familiar with the legislation, which has been known as the Respect for Marriage Act, told the Washington Blade its lead sponsors — Rep. Jerrold Nadler (D-N.Y.) in the House and Sen. Dianne Feinstein (D-Calif.) in the Senate — are delaying introduction until after the expected court ruling in June.

Fred Sainz, HRC’s vice president of communications, said his organization supports the decision to postpone introduction of the bill until after a decision is reached in the DOMA case, known as Windsor v. United States.

“The lead sponsors of the RMA have decided to wait until after the court rules in Windsor,” Sainz said. “We support that decision and look forward to continuing to work with them to advance this important legislation.”

Ian Thompson, legislative representative for the ACLU, said his organization, which filed the lawsuit against DOMA, has a similar understanding that the lead sponsors won’t introduce the Respect for Marriage Act until the Supreme Court rules on plaintiff Edith Windsor’s challenge.

“The ACLU understands and respects that decision, and is committed to continuing to work with our sponsors in Congress and coalition partners to advance the Respect for Marriage Act and a full repeal of DOMA to ensure that the federal government recognizes and respects the marriages of same-sex couples across the nation,” Thompson said.

Still, the lawmakers are staying mum. Ilan Kayatsky, a Nadler spokesperson, said he had “no news to report yet” on the timing for the introduction of the DOMA repeal bill, and Feinstein’s office declined to comment.

In the event that the Supreme Court decides to uphold DOMA, the Respect for Marriage Act would be the next approach to lifting the 1996 anti-gay law, which prohibits federal recognition of same-sex marriage. Moreover, as previously reported by the Blade, legislation still may be necessary if DOMA is overturned to clear up lingering inequities for married same-sex couples, such as in situations where they move from one state that recognizes their union to another that doesn’t.

Previous versions of the bill had a “certainty provision” spelling out that federal benefits would continue to flow to married gay couples — even if they live in a state that doesn’t recognize same-sex marriage.

David Codell, legal director at the Williams Institute of the University of California, Los Angeles, explained that the Respect for Marriage Act “would serve important purposes” even if the Supreme Court were to strike down the ban on federal recognition of same-sex marriage.

“The Respect for Marriage Act would make clear that the federal government would treat as valid for federal purposes all marriages of same-sex couples in the United States if the marriages were valid where entered — regardless of whether a couple currently lives in a state that permits same-sex couples to marry or recognizes such marriages,” Codell said. “The Act would mean that a validly married same-sex couple could move anywhere in the country without losing federal benefits tied to marriage.”

As they await introduction of a bill, LGBT advocates say they’re continuing to work to bring on additional co-sponsors for the bill, which closed the 112th Congress with 161 co-sponsors in the House and 32 co-sponsors in the Senate. That effort was highlighted by Evan Wolfson, president of Freedom to Marry.

“Freedom to Marry’s focus right now is on continuing to add co-sponsors as we prepare to introduce the bill with the strongest momentum possible when ready to move forward,” Wolfson said.

While the House bill had Republican co-sponsors in the 112th Congress — Rep. Ileana Ros-Lehtinen (R-Fla.), Rep. Richard Hanna (D-N.Y.) and former Rep. Charlie Bass (R-N.H.) — the Senate version of the bill has never had GOP support. Even Sen. Susan Collins (R-Maine), who’s considered an LGBT advocate and champion of “Don’t Ask, Don’t Tell” repeal, wasn’t a co-sponsor.

But the Log Cabin Republicans say that will change. Gregory Angelo, the organization’s executive director, said he expects Portman — who came out in favor of marriage equality after he learned his son is gay — to be among the sponsors of the DOMA repeal.

“Congresswoman Ileana Ros-Lehtinen and Congressman Richard Hanna were Republican co-sponsors in the 112th Congress, and we have every expectation they will continue as co-sponsors when the bill is reintroduced,” Angelo said. “Given his recent evolution on marriage equality, we expect Republican Senator Portman to be a co-sponsor in the Senate.”

Angelo later clarified that he’s had no assurances from Portman that he’ll be a sponsor, but was basing his assessment on the senator’s past statements in favor of same-sex marriage.

Portman’s office didn’t respond to a request for comment on whether he’ll sign on as co-sponsor to the Respect for Marriage Act. According to a Cleveland Plain Dealer article at the time Portman came out for marriage equality, Portman told reporters he believes legally married gay couples should receive the federal benefits of marriage, but the report doesn’t quote him as saying he’ll sign on as a sponsor to DOMA repeal legislation per se.

Polis reintroduces bill to protect LGBT students

Jared Polis, Colorado, United States House of Representatives, Democratic Party, gay news, Washington Blade

Rep. Jared Polis (D-Colo.) has reintroduced the Student Non-Discrimination Act (Washington Blade photo by Michael Key)

The most senior openly gay member of the U.S. House on Thursday introduced legislation to protect LGBT students in public schools from bullying and harassment.

Rep. Jared Polis (D-Colo.), a former chair of the Colorado State Board of Education, announced during a conference call with reporters his plans to reintroduce the Student Non-Discrimination Act in the U.S. House.

“We need to protect kids at school regardless of what adults think about the different ways that people live their lives,” Polis said. “Our schools need to be a safe place where everybody can go to learn; nobody should be forced to drop out or not attend school for fear. Education is the right of every student, regardless of their sexual orientation or gender identity.”

Modeled after Title IX of the Education Amendments of 1972, SNDA establishes LGBT students as a protected class and prohibits schools from discriminating against any student based on actual or perceived sexual orientation or gender identity, including by allowing bullying against them. According to the LGBT Equality Caucus, the language in the new bill is the same as it has been in previous years.

The bill has bipartisan support right off the bat.

Rep. Ileana Ros-Lehtinen (R-Fla.), a former Florida certified teacher and is known as the most pro-LGBT Republican in the U.S. House, is among the original co-sponsors of SNDA.

“There are currently no protections for federal law against this discrimination and harassment based on sexual orientation or gender identity, so the federal law is failing LGBT students and this is an injustice that needs to be corrected,” Ros-Lehtinen said.

Ros-Lehtinen added she hopes that “every legislator — whether they’re Democrat or Republican” can look at the legislation “in a sensible way” and realize that LGBT students should be a protected class against discrimination.

Polis said each of the six openly LGB members of Congress — himself, Rep. David Cicilline (D-R.I.), Rep. Sean Patrick Maloney (D-N.Y.), Mark Pocan (D-Wis.), Kyrsten Sinema (D-Ariz.) and Mark Takano (D-Calif.) — are among the co-sponsors of the legislation. Polis also identified House Minority Leader Nancy Pelosi (D-Calif.) as an original co-sponsor.

Joining the lawmakers on the conference call was a student and a parent of a student who say they’ve experienced discrimination in schools based on LGBT status.

Becky Collins talked about how her son Zach Collins was bullied for being gay while attending school in Chillicothe, Ohio.

“I have called the school several times while he was in grade school, then middle school came — and it’s more hurtful words, it’s shoving him into the locker, it’s touching him inappropriately,” Collins said. “My son, he just kind of took it with a grain of salt, even though I kept calling, kept calling. They said, ‘We’ll talk to him. We’ll talk to him.’ And still nothing changed for my son.”

After this bullying led to her son being beaten in the classroom two years ago, Collins said she had to involve the local sheriff because the school wouldn’t take action. Instead, the school principal urged her son to be the one to make the change so that he would no longer be targeted.

“The principal looks at my son and says, ‘I don’t have any other problem with any other student but you. What can we do to change you?’” Collins said. “They wanted my son to change, not the children that are torturing him daily, shoving him into walls and lockers and touching him in places that you shouldn’t touch another person.”

Also on the call was Bayli Silberstein, a bisexual eighth grade student from Florida who spoke about the difficulties she’s facing in her attempts to create a Gay-Straight Alliance to address the bullying that she and her friends face.

“My friends and I tried to start one last year, and our principal said ‘no,’” Silberstein said. “But they already had some clubs; they had a Christian club and they had a bullying club. So I was a little confused, and I wanted to try again. And the principal said we had to submit it to the school board. They made a really big deal out of it, and tried to cancel all extracurricular clubs for every middle school in the county.”

According to the American Civil Liberties Union, students already have the right to form GSAs under the Equal Access Act, a 1984 law that compels secondary schools to provide equal access to extracurricular clubs.

Ellen Kahn, director of the Human Rights Campaign Family Project, offered statistics demonstrating the degree of bullying that LGBT students face in schools.

According to an HRC survey cited by Kahn, 64 percent of LGBT teens — compared to 47 percent of non-LGBT teens — never participate in afterschool activities out of fear of discrimination or bullying. She also said LGBT youth are twice as likely as their non-LGBT peers to experience to bullying or harassment in school.

“While most of the bullying and exclusion is the perpetuated by their peers, we also know that adults who work in our schools — from bus drivers, to teachers — engage in anti-LGBT behavior and discrimination as well,” Kahn said.

Passage of SNDA — as with any pro-LGBT bill — will be difficult along as a Republican majority controls the House, but Polis nonetheless saw an opportunity for passage if Congress takes up the reauthorization of the Elementary and Secondary Education Act.

“There’s dozens, if not hundreds, of education bills and certainly a number of others that I co-sponsor that we hope to include in ESEA reauthorization,” Polis said. “We don’t know the overall likelihood of ESEA reauthorization, but it certainly remains one of my top priorities, and of course, including SNDA as part of that is critical.”

Last year, LGBT groups urged the Senate Education Labor and Pensions Committee to include SNDA when it marked up ESEA reauthorization. Sen. Al Franken (D-Minn.), who has sponsored SNDA in the Senate, gave an impassioned speech against anti-gay bullying before the committee, but withdrew the measure as an amendment. After the larger vehicle was reported out of committee, it didn’t go anywhere and ultimately died in the Senate.

Polis acknowledged another more challenging route for the bill is passage of the measure as a standalone bill through a markup process in the House Committee on Education and the Workforce. The Colorado said he intends to speak with Chairman John Kline (R-Minn.) about the legislation to pursue this path, but the more co-sponsors would build pressure on him to markup the bill.

LGBT groups praised SNDA upon Polis reintroduction of the bill as means to ensure LGBT youth are protected from discrimination and harassment while attending school.

Ian Thompson, legislative representative of the ACLU, was among those who hailed the bill and called it “the single most important step” that Congress could take to help LGBT students.

“Though the pace of positive progress on LGBT rights over the past several years has been dizzying, there is shockingly no federal law that explicitly protects LGBT students from discrimination and harassment in our nation’s public schools,” Thompson said. “We urge Congress to pass this bipartisan legislation and in doing so affirm that every student deserves the opportunity to attend school and learn without fear.”

On the same day that Polis introduced SNDA, a group of more than 82 advocacy organizations sent a letter to members of Congress urging them to sign on in support of the legislation.

“The Student Non-Discrimination Act presents us with a historic opportunity to offer critical protections to current and future generations of LGBT youth and their student allies by ensuring that discrimination against and harassment of students on the basis of their sexual orientation or gender identity will have no place in our country’s public elementary and secondary schools,” the letter states.

Signers of the letter include LGBT groups, such as the Human Rights Campaign, the National Gay and Lesbian Task Force Action Fund, the Gay, Lesbian & Straight Education Network and Log Cabin Republicans, and other groups, such as the ACLU, the NAACP and the National Council of La Raza.

The exact timing for Senate introduction of SNDA is unknown. A Senate aide said Franken is planning on introducing the bill in the upcoming weeks.

Another bill that would address anti-gay bullying is the Safe Schools Improvement Act, which would require schools to adopt codes of conduct against bullying, including on the basis of LGBT status, and report bullying data to Department of Education Education. That legislation is sponsored by Rep. Linda Sanchez (D-Calif.) in the House and Sen. Bob Casey (D-Pa.) in the Senate.

Following calls from LGBT advocates, the White House announced last year that President Obama had endorsed both SNDA and SSIA. Asked whether Obama still holds the position on both bills today, Shin Inouye, a White House spokesperson, said Obama supports “the goals” of SNDA.

“We support the goals of the Student Non-Discrimination Act introduced by Congressman Polis today,” Inouye said. “We look forward to working with Congress to ensure that all students, including LGBT students, are safe and healthy and can learn in environments free from discrimination, bullying, and harassment.”

Medicare asked to review ban on gender reassignment surgery

transgender, caduceus, medicare, gay news, Washington Blade, health

LGBT groups are askng Medicare to lift its ban on gender reassignment surgery. (Image public domain)

Medicare is being asked to review a policy that prohibits transgender people from receiving coverage for gender reassignment surgery.

Last week, a quartet of LGBT rights groups — the National Center for Lesbian Rights, the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders and civil rights attorney Mary Lou Boelcke — filed an administrative challenge to eliminate Medicare’s ban on coverage for the procedure.

Joshua Block, a staff attorney with the ACLU’s LGBT Project, said the challenge was filed because a policy change is “overdue.”

“It is completely out of line with any scientific or medical evidence or standards of practice,” Block said. “There are people out there who are in desperate need of the surgery. Their doctors have told them they need the surgery. And they’re being told it’s not covered because it was allegedly experimental 30 years ago.”

The challenge, sent on March 26, was filed on behalf of Denee Mallon, a transgender woman in Albuquerque, New Mexico. A Medicare recipient who’s age 73, Mallon was recommended to have gender reassignment surgery by doctors to treat her gender dysphoria.

A veteran of the U.S Army, Mallon joined the the service when she was 17 and worked as a forensics investigator for a city police department. She was later diagnosed with gender identity disorder.

Mara Keisling, executive director of the National Center for Transgender Equality, said she’s “very excited” about the challenge.

“Americans, in general, are really tired of health care decisions being made by legislators and bureaucrats and insurance companies,” Keisling said. “Most of us believe that health care decisions should be made by patients and doctors, and the medical community is pretty unified. This is a legitimately necessary surgery.”

Keisling said NCTE isn’t directly involved in the challenge because it involves lawyers representing clients, and the organization doesn’t provide those legal services.

The ban, which is codified as National Coverage Determination 140.3, was put in place in 1981 during the Reagan administration. Keisling said the ban was put in place as a result of the stigma on transgender people at the time and lobbying from insurance groups.

The National Coverage Determination from 1981 spells out why transgender people are unable to receive this coverage under Medicare.

“Transsexual surgery for sex reassignment of transsexuals is controversial,” the regulation states. “Because of the lack of well controlled, long term studies of the safety and effectiveness of the surgical procedures and attendant therapies for transsexualism, the treatment is considered experimental. Moreover, there is a high rate of serious complications for these surgical procedures. For these reasons, transsexual surgery is not covered.”

Despite this policy, the American Medical Association and the American Psychological Society support gender reassignment surgery for transgender people.

Block said the challenge has been filed at this time — more than 30 years after the ban was put in place — because “each year that goes by, it becomes ever more clear how unfounded the categorical sweeping ban is.”

“Each year that goes by, there’s more and more evidence that just reaffirms the widely accepted view that these surgeries are safe, medically necessary and effective to treat a serious medical condition,” Block said.

Now that the challenge has been filed, the Department Appeals Board of the Department of Health & Human Services is set to review the ban, determine if it’s reasonable under current standards of care and make a decision on whether to reverse it. It’s estimated the process could take months to resolve.

It’s unclear how many transgender people the change would affect. A recent study from the Williams Institute found that one-third of one percent of Americans identify as transgender, and an estimated 48 million people receive coverage under Medicare. Given those numbers, about 144,000 transgender people are receiving coverage under Medicare.

In an apparently separate development last week, the Centers for Medicare & Medicaid Services included a statement on its website asking for public comment because it would reconsider the ban. But the notice was removed on Friday from the agency’s website after conservative media, such as Drudge Report, took note of it.

Brian Cook, a CMS spokesperson, told the Blade solicitation for public comment was removed as a result of the legal challenge from LGBT groups coming to light.

“An administrative challenge to our 1981 Medicare national coverage determination concerning sex reassignment surgery was just filed,” Cook said. “This administrative challenge is being considered and working its way through the proper administrative channels. In light of the challenge, we are no longer re-opening the national coverage determination for reconsideration.”

Although the challenge was filed last week, LGBT groups didn’t notify the press about it until Monday. Block said the notice that went up on the Medicare website — and its subsequent removal — prompted the news statement.

“I think there were a lot of questions — particularly by members of the transgender community — about the status of NCD and what this administrative challenge was, and so we thought it was important to give affirmative clarification about what this challenge is and how it’s separate from the CMS process,” Block said.

ENDA under review prior to April reintroduction

Jared Polis, Colorado, United States House of Representatives, Democratic Party, gay news, Washington Blade

Rep. Jared Polis (D-Colo.) acknowledged a review process is underway for ENDA. (Washington Blade photo by Michael Key)

A long-standing piece of pro-LGBT legislation is under review and may be redrafted prior to its expected introduction in the U.S. House next month.

In an interview with the Washington Blade on Wednesday, Rep. Jared Polis (D-Colo.), the senior openly gay member of the U.S. House, announced that he plans to introduce in April the Employment Non-Discrimination Act, a measure that would bar workplace discrimination against LGBT people.

“I’ll be the lead author of ENDA, which we are at least planning to reintroduce in April,” Polis said.

Multiple sources familiar with ENDA say the legislation is being reconsidered before its reintroduction in the 113th Congress, and maintain no final decisions on the bill have been made.

It’s unclear what the nature of the changes might be, but one source familiar with ENDA told the Washington Blade the bill is being reconsidered with respect to religious exemption and disparate impact to make the legislation’s protections stronger for LGBT workers than previously written. The changes are being considered under the assumption the legislation won’t pass anyway with Republicans in control of the U.S. House.

ENDA has previously included a strong religious exemption. In the most recent version of the bill, Section 6 provided an exemption for religious organizations and businesses that were also exempt under Title VII of the Civil Rights Acts of 1964.

The legislation also avoided the issue of disparate impact. Under that doctrine, which is found under Title VII, a violation of the law may be found if an employer has a practice that discriminates against workers, even though it doesn’t seem discriminatory on its face.

For example, a company that says it won’t hire anyone for a job who’s shorter than 5’10″ could be found in violation of the law on the basis of gender discrimination because most women aren’t that tall. It’s unclear how disparate impact would apply to LGBT people.

Polis declined to identify any specific changes being contemplated to ENDA, but acknowledged a review process is underway.

“We’re going through ENDA now and have been working with many of the advocacy groups and my staff, and the [LGBT] Equality Caucus staff to make sure that concerns are addressed, and we’re going through that now,” Polis said.

In response to a follow-up question about whether changes would be made with respect to the religious exemption or disparate impact, Polis reiterated that a review process is happening.

“There haven’t been any decisions made yet about that,” Polis said. “We’re listening. We’re listening to folks in the equality community, and there are many different ideas on how to improve ENDA and we’re evaluating them and seeing where we have consensus.”

There may be other ways in which the bill is being reconsidered but no sources specifically identified any such changes to the Blade.

One possible change may be the way ENDA applies to small businesses. Under previous versions of the bill, the law would only apply to employers with 15 or more employees. Companies with fewer employees would be free to discriminate under federal law even if ENDA were passed.

LGBT advocacy groups that work on ENDA responded to the Blade’s inquiries on whether changes would be made to the bill by confirming the review process is underway.

Fred Sainz, vice president of communications for the Human Rights Campaign, said all pro-LGBT legislation is reviewed prior to reintroduction at the start of a new Congress.

“Every Congress, legislation is reviewed with an eye toward making any needed changes or improvements,” Sainz said. “The goal is always to better the lives of LGBT people. This process is underway with every piece of legislation.”

Ian Thompson, legislative representative for the American Civil Liberties Union, also acknowledged the review process and said he welcomes changes that would provide stronger protections for LGBT people.

“Prior to reintroduction in any Congress, legislation should always be reviewed in light of political and legal developments that may necessitate changes,” Thompson said. “I am firmly of the belief that this should always be done with an eye toward securing the strongest possible protections for LGBT people.”

Tico Almeida, president of Freedom to Work, declined to comment.

Lesbian Sen. Tammy Baldwin (D-Wis.) told SiriusXM Out Q’s Michelangelo Signorile in an interview this week that stakeholders are working the bill by “getting it in final form.”

“Right now the author of the legislation is engaged in negotiations to put finishing touches on the version of the bill that will be introduced, perhaps right after the break for Easter and Passover,” Baldwin said.

It’s not yet clear whether the final language for ENDA  in the House version of the bill sponsored by Polis and the Senate bill that Sen. Jeff Merkley (D-Ore.) has previously sponsored would be identical. Polis suggested the two versions of the bill may be different when asked if his introduction of ENDA would be concurrent with Merkley’s introduction of the bill.

“No decision made in terms of that,” Polis said. “Those are also [decisions] to be made in terms of do you do it on the same day, and do you do different versions or the same version. There are always all those decisions to be made around timing of bills.”

Jamal Raad, a Merkley spokesperson, said a bipartisan group of lawmakers is at work on ENDA prior to its reintroduction, identifying Sen. Mark Kirk (R-Ill.), who’s been an original co-sponsor in the past.

“We are currently working with Senator Kirk’s team and stakeholders, and hope to reintroduce soon,” Raad said.

Asked if any changes would be made to ENDA, Raad replied, “We are reviewing the language with cosponsors and stakeholders, but no decision has been made.”

Stakeholders affirmed that they’re committed to ensuring the bill includes protections based on gender identity and expression. Polis maintained he wants an inclusive bill.

“I’m firmly committed to ensuring this is an inclusive bill and will address the issue of discrimination in the transgender community,” Polis said.

Asked to clarify whether the gender identity protections would be modified in any way, Polis said a listening process is underway without identifying any change in particular.

“We are in the process of listening to folks in the equality community — both the transgender community as well as the gay community,” Polis said. “We’ve gotten a lot of good input into improving the bill. We’re trying to see where we can forge consensus, and again, no decisions have been made about the final language.”

In 2007, former Rep. Barney Frank (D-Mass.) invoked the ire of many in the LGBT community when he advanced a version of ENDA without the gender identity protections, saying the votes weren’t present to pass a transgender-inclusive bill. Frank later came to believe ENDA must be passed with gender identity protections.

 

Pa. school board faces lawsuit over GSA refusal

Witold Walczak, legal director of the ACLU-PA, photo courtesy Wikimedia

Witold Walczak, legal director of the ACLU-PA, said Chambersburg has until this Wednesday to respond to a lawsuit threatened over the town’s refusal to allow a GSA to form. (Photo courtesy of Wikimedia)

By MICHAEL MARTIN GARRETT

The American Civil Liberties Union of Pennsylvania and Equality Pennsylvania are threatening the school board of Chambersburg, a south central Pennsylvanian town, with legal action after the board voted 5-4 against allowing high school students to form a Gay-Straight Alliance on Feb 27.

The ACLU-PA and Equality PA sent a letter on March 12 to the Chambersburg Area School District superintendent and board president asking them to reverse their decision by March 15 or face a lawsuit in United States district court.

Witold Walczak, legal director of the ACLU-PA, said the school board asked for a month’s extension. The board now has until Wednesday, March 20 to respond, he said.

The school board’s Feb 27 decision came after several delays, including tabling the issue and questioning the club’s bylaws, which Equality Pennsylvania Executive Director Ted Martin called “traditional delaying tactics.”

“[The ACLU-PA and Equality PA] decided to give the ultimatum to the school board because the decision they made was wrong,” Martin said. “It was time for them to realize that what they were doing was violating the law.”

Walczak said the board’s decision was a violation of the Equal Access Act, a federal law that prevents discrimination against noncircular clubs in federally funded secondary schools.

“If the school board allows any noncircular clubs, then they have to allow the Gay-Straight Alliance,” Walczak said. The Chambersburg high school currently has a Bible Club and a Ping Pong Club, among others, he said.

“Not only is this the right thing to do from a policy perspective – to treat all students fairly… but they also have a legal obligation to do so,” Walczak said.

School board member Carl Barton said he voted against allowing the GSA because he “thought we needed to do some more research and consensus building.” Barton said that he was also concerned about the possible liability of students receiving “counseling” from non-licensed individuals at club meetings.

“You can’t do counseling, per se, because we then might have a liability,” Barton sad. “Legally, if one kid’s sitting down with another and talking to him about critical things – like depression – it can become quite serious.”

Barton said he also was trying to keep the GSA from “becoming the major issues for the school board election.”

The other members of the school board and superintendent Joseph Padasak could not be reached for comment. Assistant superintendent Eric Michael declined to comment, saying it would be inappropriate to discuss the actions of the board in light of the threat of legal action.

Former Chambersburg Area Senior High School student Thomas McCalmont started a petition on Change.org for the school board to reverse its decision two days after the board’s decision. As of March 16, the petition had 6,057 signatures.

McCalmont, who tried unsuccessfully to start a GSA each year he attended CASHS, said he felt compelled to act because of his experiences with bullying as a gay youth at CASHS.

“I had gone through every year being verbally bullied two to three times a day…  and I knew other kids were going through the same thing,” McCalmont said.

One incident in his senior year led to McCalmont no longer being able to use the locker room before and after gym class because of the harassment he faced, McCalmont said.

“What I was trying to do [with the petition] was just to… put a little pressure on the school board to show there’s a lot of support for this club, both in and outside of the community,” McCalmont said.

Barton said he’s unsure how much of a factor McCalmont’s petition is on his position on the GSA because “there’s not a great indication of any great number of local people [who signed it].”

McCalmont said approximately 300 of the signatures are from people in Chambersburg, while almost 300 more are from the surrounding school districts. Almost 5,000 of the signatures are from Pennsylvania gay and lesbian allies, he said.

Windsor to Supreme Court: Strike down DOMA

Edith Windsor, gay news, Washington Blade

Attorneys for Edith Windsor filed their against DOMA before the Supreme Court on Tuesday (Washington Blade file photo by Michael Key)

Attorneys for New York lesbian widow Edith Windsor are arguing that the Supreme Court should strike down the Defense of Marriage Act on the basis that it violates her right to equal protection under the U.S. Constitution.

In a 63-page brief filed on Tuesday, Windsor’s lawyers make their case against DOMA — saying it furthers no federal interest in procreation or dual sovereignty with the states — and argue the law should be subjected to heightened scrutiny, or a greater assumption it’s unconstitutional.

“DOMA’s discriminatory treatment of married gay couples violates Ms. Windsor’s right to the equal protections of the laws as guaranteed by the Fifth Amendment,” the brief states.

Signers of the brief include private attorney Robbie Kaplan and attorneys from the American Civil Liberties Union, who filed the lawsuit on behalf on Windsor.

The case pending before the Supreme Court is known as Windsor v. United States and challenges Section 3 of DOMA, which prohibits federal recognition of same-sex marriage. Windsor is suing the U.S. government because in 2009 under the law she had to pay $363,000 in estate taxes upon the death of her spouse, Thea Spyer. Married straight couples are exempt from the estate tax under current law.

A substantial portion of the brief is devoted to countering the arguments of the House Republican-led Bipartisan Legal Advisory Group, which filed a brief in favor of DOMA in late January. Under the direction of House Speaker John Boehner (R-Ohio), BLAG has taken up defense of DOMA following the Obama administration’s announcement in February 2011 that it would no longer defend the law.

Windsor’s attorneys, for example, say BLAG’s argument that DOMA serves a federal interest by preserving marriage as one man, one woman to encourage responsible procreation “speaks volumes” about the lack of validity of the law.

“This one difference cannot explain the federal government’s decision to impose a sweeping disability on married gay couples that excludes them from countless federal programs and protections, and that only harms their children,” the brief states. “Because this distinction is based on the one feature that distinguishes married gay couples from married straight couples, what BLAG is really arguing is that it is acceptable to discriminate against married gay couples simply because they are gay.”

The brief from Windsor’s attorneys comes on the heels of a similar brief filed against DOMA before the Supreme Court by the Justice Department, which has assisted in litigation against the law. Both briefs argue that the court should apply heightened scrutiny to its review of DOMA.

Windsor’s attorneys makes the argument that DOMA should be subjected to heightened scrutiny because, like other suspect classes, gay people have suffered a long history of discrimination, sexual orientation is a central part of a person’s identity, and gay people lack power in the political process.

The brief also states that gay people should be considered a suspect class because sexual orientation has no bearing on their ability to contribute to society.

“Despite pervasive discrimination, lesbians and gay men have served with great distinction in virtually every facet of American society, as artists, athletes, academics, soldiers, scientists, lawyers, judges, psychologists like Dr. Spyer, and computer programmers like Ms. Windsor,” the brief states.

The U.S. Second Circuit Court of Appeals applied heightened scrutiny to DOMA in its ruling against the law. It remains to be seen whether the Supreme Court will do the same, but if it did, that could have widespread implications on laws affecting gay people.

However, there’s a key difference between the arguments in the briefs with regard to how DOMA hold against an application of a lower standard of rational basis review. Windsor’s attorneys say the court should strike down DOMA even it applied this lower standard and didn’t apply heightened scrutiny. The Justice Department does not challenge the law on the basis of rational basis review, but admits DOMA would fail under a more searching form of that review.

The next step in the case is for other interested parties to file their friend-of-the-court briefs on behalf of Windsor. Those briefs are due Friday.

The House Republican-led Bipartisan Legal Advisory Group has 30 days to respond to the brief filed by Windsor’s attorneys. Oral arguments in the case are scheduled for March 27 and justices are expected to render a decision before their term ends in June.

Gay service members to receive full severance pay

Defense Secretary Leon Panetta (Blade photo by Michael Key)

Defense Secretary Leon Panetta (Blade photo by Michael Key)

A federal court on Monday approved a settlement that will allow gay service members discharged because of their homosexuality to receive full severance pay.

The American Civil Liberties Union said that it reached the roughly $2.4 million agreement on behalf of more than 180 service members who signed onto a class action lawsuit who received only 50 percent of their separation pay when the military discharged them. This policy took effect in 1991, two years before “Don’t Ask, Don’t Tell” took effect.

The settlement the ACLU reached with the Pentagon only applies to those discharged before Nov. 10, 2004, because of the statute of limitations.

“It makes no sense to continue to penalize service members who were discharged under a discriminatory statute that has already been repealed,” Joshua Block, staff attorney for the ACLU Lesbian Gay Bisexual Transgender Project, said. “The amount of the pay owed to these veterans is small by military standards, but is hugely significant in acknowledging their service to their country.”

The ACLU in 2010 challenged the policy on behalf of former Air Force Staff Sgt. Richard Collins who was discharged under “Don’t Ask, Don’t Tell” in 2006 after a co-worker at Cannon Air Force Base in New Mexico saw him kiss his boyfriend in their car while they were off-base.

“This means so much to those of us who dedicated ourselves to the military, only to be forced out against our will for being who we are,” Collins said. “We gave all we had to our country, and just wanted the same dignity and respect for our service as any other veterans.”

“There was absolutely no need to subject these service members to a double dose of discrimination by removing them from the armed forces in the first place, and then denying them this small benefit to ease the transition to civilian life,” Laura Schauer Ives, managing attorney for the ACLU of New Mexico, added. “This decision represents a long-delayed justice to these veterans.”

The ACLU announced the settlement hours after President Obama nominated former Nebraska Sen. Chuck Hagel to succeed Defense Secretary Leon Panetta — his selection sparked controversy among some advocates who have criticized him for his anti-LGBT voting record on Capitol Hill and for describing James Hormel as “openly, aggressively gay” during a 1998 newspaper interview about his nomination to become the U.S. ambassador to Luxembourg.

Hagel apologized for his comments.

Former chair of the Joint Chiefs of Staff Adm. Mike Mullen and U.S. Marine Corps Commandant Gen. James Amos are among the military commanders who have said the integration of openly gay men and lesbians into the armed forces has gone smoothly since the repeal of “Don’t Ask, Don’t Tell” became official in September 2011.

Problems, however, remain.

Transgender servicemembers remain unable to openly serve, while the Defense of Marriage Act prohibits the military from providing on-base housing, survivor and other spousal benefits to same-sex partners of gay soldiers.

Servicemembers Legal Defense Network in October 2011 filed a federal lawsuit against DOMA on behalf of Chief Warrant Officer Charlie Morgan, a lesbian guardsman with terminal breast cancer who led the Pledge of Allegiance at New Hampshire Gov. Maggie Hassan’s inauguration on Jan. 3, and other gay service members and veterans. The Southern Poverty Law Center last February filed a lawsuit against the U.S. Department of Veteran Affairs on behalf of a disabled veteran from California whose application for spousal benefits for her wife whom she legally married outside Los Angeles before voters in 2008 approved Proposition 8 that banned nuptials for gays and lesbians.

The U.S. Supreme Court is scheduled to hear oral arguments in cases challenging both Prop 8 and DOMA at the end of March.

The Obama administration announced in February 2011 it would no longer defend DOMA, but House Republicans continue to back it.

Obama signs ‘conscience’ clause-inclusive defense bill

President Obama signed into law Wednesday a defense bill including a "conscience" provision (Blade file photo by Michael Key)

President Obama signed into law Wednesday a defense bill including a “conscience” provision (Blade file photo by Michael Key)

President Obama signed into law a $633 billion package of major Pentagon budget legislation on Wednesday that includes a “conscience” provision prohibiting troops for being punished for their beliefs as he maintained the language “will not alter” the rights of gay service members.

In his signing statement, Obama identifies the conscience provision as one of many parts of the fiscal year 2013 defense authorization bill with which he disagrees — calling it “an unnecessary and ill-advised provision” — but says he’s received assurances from the Defense Department that its implementation won’t permit discriminatory actions or interfere with military discipline.

“Section 533 is an unnecessary and ill-advised provision, as the military already appropriately protects the freedom of conscience of chaplains and service members,” Obama said in the signing statement. “The Secretary of Defense will ensure that the implementing regulations do not permit or condone discriminatory actions that compromise good order and discipline or otherwise violate military codes of conduct. My Administration remains fully committed to continuing the successful implementation of the repeal of Don’t Ask, Don’t Tell, and to protecting the rights of gay and lesbian service members; Section 533 will not alter that.”

A bipartisan group of House and Senate lawmakers agreed to include the provision, known as Section 533, as part of the conference report for the defense legislation. At the time, most LGBT groups called the language disheartening, but determined it would have no substantive impact  on gay service members. However, the American Civil Liberties Union had strong objections to the language, saying it could lead to claims to discriminate and to opt-out of anti-harassment training.

Ian Thompson, legislative representative for the ACLU, said Obama’s interpretation of the “conscience” provision is “a welcome step” and the Pentagon should ensure implementation of the provision is consistent with that explanation.

“Providing this explanation of how Section 533 will be implemented by the Department of Defense was a welcome step from President Obama,” Thompson said. “Going forward, it is essential for DOD to ensure that no accommodation of religious belief or conscience can result in discrimination or harm to others.”

The provision is a watered-down version of an amendment inserted into the House version of the bill by outgoing Rep. W. Todd Akin (R-Mo.). The House language gave even greater leeway to troops and military chaplains and had more anti-gay overtones, saying the U.S. military must accommodate service members’ beliefs concerning “appropriate and inappropriate expression of human sexuality.” The conference report ultimately tamed this language in addition to omitting another provision found in the House bill that would have prohibited same-sex weddings on military bases.