UPDATE: Justice Department releases new policy to curb police profiling

eric holder.small

Update:

The Justice Department released today, Dec. 8, new policies aimed to curb profiling by law enforcement based on sexual orientation, gender identity, religion and national origin, expanding on a 2003 decision to bar profiling based on race and ethnicity. You can read the new policy here.

“As Attorney General, I have repeatedly made clear that profiling by law enforcement is not only wrong, it is profoundly misguided and ineffective – because it wastes precious resources and undermines the public trust,” Attorney General Eric Holder said in a statement.

Holder said the policy is necessary especially in light of numerous recent incidents involving police brutality. “It brings enhanced training, oversight, and accountability to federal law enforcement across the country, so that isolated acts of discrimination do not tarnish the exemplary work that’s performed by the overwhelming majority of America’s hard-working law enforcement officials each and every day.”

The new guidance also applies to state and local law enforcement law officers who participate in federal law enforcement task forces.

The National Center for Transgender Equality in a statement welcomed the extension but criticized its numerous loopholes. “Discrimination is not something we need to keep us safe— it’s bad police work, it’s unconstitutional, and it makes us all less safe,” said NCTE Executive Director Mara Keisling.

According to the National Transgender Discrimination Survey, 46% of transgender people say they would feel somewhat or very uncomfortable seeking police assistance, while only 35% said they would feel comfortable doing so. 22% of all trans people and 38% of Black trans people report experiencing transphobic police harassment—while 6% of all trans people, 9% of trans Latinos, and 15% of Black trans people report having experienced a transphobic assault by police.

Holder announced his resignation last month. President Obama nominated federal prosecutor Loretta Lynch of Brooklyn to replace him.

Original story:

Attorney General Eric Holder is set to announce today, Dec. 8, a new policy barring law enforcement officials from profiling based on sexual orientation, gender identity and expression, national origin and religion, The Washington Blade reports.

The policy expands a 2003 decision to bar profiling based on race and ethnicity.

The policy has been in five years in the making.

“With this new guidance, we take a major and important step forward to ensure effective policing by federal law enforcement officials and state and local law enforcement participating in federal task forces throughout the nation,” Holder said in a statement.

—  James Russell

UPDATED: Human Rights Campaign praises outgoing AG Eric Holder

eric holder.smallFollowing reports that United States Attorney General Eric Holder will announce his resignation today, the Human Rights Campaign released a statement praising him while calling for President Obama to nominate an out LGBT cabinet member.

“Some Attorneys General wait for history, others make history happen. Attorney General Holder made history for the LGBT community,” said Chad Griffin, president of HRC. “He was our Robert F. Kennedy, lightening the burden of every American who faces legal discrimination and social oppression. We owe him a profound debt of gratitude for his legacy of advocacy and service.”

“The President has expressed a commitment to appointing a cabinet that reflects the full diversity of the American people, and there are many richly-qualified candidates available to serve as the first openly-LGBT cabinet secretary. It would be a natural extension of this administration’s enduring commitment to equality to send a message of visibility and inclusion by nominating such a candidate to serve in this historic role,” Griffin added.

You can read the full statement here.

According to NPR, the nation’s first black attorney general is one of the longest-serving Obama appointees and “ranks as the fourth longest tenured AG in history.”

Holder is well-known for refusing to defend DOMA and suing Texas over its voter ID law.

He plans to serve until a successor is nominated and approved by the Senate.

Check out Instant Tea throughout the day as details come in.

—  James Russell

Justice department changes definition of rape

Atty. Gen. Eric Holder

In the first change to the definition of rape since 1927, the U.S. Justice Department has annoounced it will now include men as victims, according to Attorney General Eric Holder.

The definition used for almost a century was, “The carnal knowledge of a female, forcibly and against her will.”

The new definition released in a press release today is, “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

“These long overdue updates to the definition of rape will help ensure justice for those whose lives have been devastated by sexual violence and reflect the Department of Justice’s commitment to standing with rape victims,” Attorney General Holder wrote in his press release. “This new, more inclusive definition will provide us with a more accurate understanding of the scope and volume of these crimes.”

—  David Taffet

DADT repeal starts Tuesday, but will discrimination continue?

DOJ says Log Cabin lawsuit should be declared ‘moot,’ but LCR attorney warns that without ruling, discriminatory policies could be reinstated

Baldwin.Polis
STILL FIGHTING | Attorney Dan Woods, right, and Log Cabin Republicans Executive Director R. Clarke Cooper, left, pose together following the ceremony last December in which President Obama signed legislation repealing DADT. (Photo courtesy Log Cabin Republicans)

Lisa Keen  |  Keen News Service
lisakeen@me.com

“Don’t ask, don’t tell” will be off the books Tuesday, Sept. 20. But there is still concern among some that the removal of that specific law barring gays from the military will not stop discrimination against gays in the military.

And Servicemembers Legal Defense Network is warning active duty military to be aware of rules affecting them if they choose to be openly gay in uniform.

Log Cabin Republicans’ attorney Dan Woods reminded a three-judge panel of the 9th Circuit U.S. Court of Appeals on Sept. 1 that Congressional repeal of DADT is not enough to end discrimination against gays in the military. Woods noted that before passage of DADT in 1993, there was a military regulation — not a federal law — that banned “homosexuals” from the military.

“That ban had existed for decades,” Woods said.

And if the 9th Circuit panel does not affirm a district court decision finding DADT unconstitutional, Woods added, “the government will be completely unconstrained in its ability to again ban gay service in the military.”

The 9th Circuit panel is considering a motion by the Department of Justice to declare the Log Cabin lawsuit moot since Congress has repealed DADT.

R. Clarke Cooper, executive director for Log Cabin Republicans said Tuesday, Sept. 13, that there is no prescribed timeline for the 9th Circuit issuing its decision on the motion.

“I know some people are expecting that we will have a ruling on that by Sept. 20 or just after that, but Dan Woods has told us that it could happen any time. And ‘any time’ means it could come in a month, or it could take several months. There’s nothing that says when the court has to issue its ruling,” Cooper said.

Woods pointed out that even since the repeal was passed by Congress last December, there is a new Congress now, there has already been a House vote to de-fund implementation of repeal, and there are “multiple candidates for president promising, as part of their campaign platforms, to repeal the repeal.”

One member of the panel, Judge Barry Silverman, suggested the latter concern, about presidential candidates, seemed a bit “speculative.”

“Well, there’s an election next year,”  responded Wood.

“Come back next year,” the judge shot back, with a barely stifled laugh. “If any of these things come to pass, it’ll be a different story. But in the meantime, this is the situation we’re faced with.”

The Department of Justice is urging the federal appeals panel to declare the Log Cabin Republicans v. U.S. lawsuit moot. The lawsuit — which won a powerful decision from U.S. District Court Judge Virginia Phillips in September 2010 — was largely responsible for prompting Congress to finally pass a bill repealing DADT in December.

Phillips had ordered the military to immediately stop enforcing DADT and, though the 9th Circuit put that order on hold pending appeal, military officials began warning Congress that it seemed inevitable the courts would strike down the law.

The military wanted a smooth transition to a DADT-free force, and Congress agreed.

Henry Whitaker, attorney for the U.S. Department of Justice, urged the panel to declare the litigation moot. He said the government would submit a motion after Sept. 20 to vacate the ruling and have the case sent back to the district court for dismissal.

Whitaker said that, if the 9th Circuit does affirm the lower court ruling, the government might even consider appealing it to the U.S. Supreme Court. And he stated several times that, until repeal takes effect, the government “is defending” DADT on its merits.

Woods said that if the federal appeals panel agrees with the government and vacates the lower court decision, and then a new president or Congress reinstates the policy, “we’d have to start all over again to prove again that laws banning open gay servicemembers are unconstitutional.

“This case took seven years to get here today. And it would be inappropriate to have to have people go through that all over again,” Woods said.

Woods also noted that affirming Judge Phillips’ ruling would remedy “collateral consequences” caused by DADT. Among those concerns, he said, are loss of benefits under the G.I. bill and benefits from the Veterans Administration, inability to be buried in VA cemeteries, and requirement that discharged servicemembers pay back their student loans.

The DOJ’s Whitaker said Log Cabin’s fear that a future Congress or president might re-enact DADT “does not pass the straight face test.” And, he added, said individuals discharged under DADT could seek remedies to these collateral forms of discrimination through individual lawsuits.

But Woods argued that it “ought not be necessary for every one of the thousands of people who have been discharged under this law to have to do that.

“If you vacate the judgment and take away the case,” Woods added “the government is unconstrained and simply might do it again. History might repeat itself.”

For now, SLDN is trying to prepare gay active duty servicemembers for the historic change that is about to take place Tuesday when the 60-day review period will have ticked away following certification of military readiness to implement repeal.

And, not surprisingly, some organizations, including SLDN, plan to celebrate the end of the 18-year-old ban.

“Many servicemembers want to attend these celebrations, and some might want to speak at them,” noted the SLDN website, adding that “no special rules apply to attendance at or participation in such events.”

But SLDN did warn gay servicemembers not to criticize their commanders — past or present — or elected officials, and not to urge defeat of any particular elected official or candidate. And the organization warned servicemembers not to wear their uniform to an event that is partisan in nature.

For more details on what’s allowed and disallowed for active duty service members in uniform, see SLDN.org.

© 2011 Keen News Service. All rights reserved.

This article appeared in the Dallas Voice print edition September 16, 2011.

—  Kevin Thomas

What’s Brewing: DADT update; new gonorrhea strain; Michele Bachmann’s ‘ex-gay’ clinics

Michele Bachmann

Your weekday morning blend from Instant Tea:

1. After ordering a halt to enforcement of “don’t ask, don’t tell” last week, the 9th U.S. Circuit Court of Appeals on Monday gave the Department of Justice 10 days to state whether it will continue to defend the policy’s constitutionality in a case brought by Log Cabin Republicans.

2. Scientists have discovered a new strain of gonorrhea that is totally resistant to antibiotics. “This is both an alarming and a predictable discovery,” lead researcher Magnus Unemo, professor at the Swedish Reference Laboratory for Pathogenic Neisseria in Örebro, Sweden, said in a statement. “Since antibiotics became the standard treatment for gonorrhea in the 1940s, this bacterium has shown a remarkable capacity to develop resistance mechanisms to all drugs introduced to control it.”

3. Christian counseling clinics owned by GOP presidential candidate Michele Bachmann and her husband have been conducting so-called “ex-gay” therapy, according to a report that aired on ABC’s Nightline on Monday night. In the wake of the report, Bachmann said she is “very proud” of the clinics and the jobs they’ve created, but refused to respond to the allegations about reparative therapy. Watch Nightline‘s report below.

—  John Wright

Sacrificial goats must keep fighting

The right wing scapegoats LGBTs, sacrificing our rights on their altar of power. The goats have to keep fighting back if we want equality

HARDY HABERMAN  |  Flagging Left

Land of the free and home of the brave? Maybe not. Just look at all the issues being flogged both in the legislature and in the press. All are to try to stifle the freedom of LGBT people.

• DOMA: The cynically named “Defense of Marriage Act” which has nothing to do with defending marriage and everything to do with denying rights to LGBT couples.

Worse, even though the president said it is unconstitutional, the GOP, lead by House Speaker John Boehner, wants to spend $500,000 of our dollars to defend a bill the Department of Justice sees as indefensible.

• Special Rights for Gays: This is a catch phrase being used again and again by the right wing to somehow try to justify discrimination in just about any way possible.

For example in many states if you are a landlord, you are not allowed to deny someone the right to rent an apartment — but only if they are listed as a protected class. That’s how the law works in this screwy society.

So, if I am a member of a racial minority, a woman or disabled, I can seek legal recourse against the landlord. Because LGBT people are not included in that list in most states, we have no recourse.

In the eyes of the right wing, granting us the same rights as any other minority is “special rights.” Worse still is the fact that we are denied rights in our relationships that other Americans get simply because they are straight.

• Hate Crimes: The right fights tooth and nail to keep LGBT people from being included in hate crimes legislation wherever it is proposed. Just as bad, some have even tried to dissect us and include gays and lesbians while leaving transgender folks out.

To add LGBT people to the list of victims of hate crimes apparently denies the far right their freedom to hate whoever they want.

• Ex-Gay Therapy: This discredited practice still gets funding and support from fundamentalist churches and right-wing organizations that are actively working to “cure” gays and lesbians. Our lives have been compared to the problem with “second-hand smoke” and devalued by rhetoric from the right.

They spread the lie that our sexual orientation is a choice, and therefore something we can change at will.

This list could go on and on, but the point is that for some reason the conservatives are spending huge piles of cash to actively deny us the rights and privileges they enjoy. Why do they spend so much of their time and energy working to take away rights from us?

Politically, it is an easy talking point. The right has found that anti-LGBT rhetoric can whip a crowd into a frenzy faster than talking about real issues. In the world of media image, nothing is as valued by the right as a cheering crowd and a sound bite on TV or radio.

Economically, LGBT issues can make a quick buck for the right wing. Whether it is raising funds to “defeat the gay agenda” or funds to “rescue the poor sinners from the gay lifestyle,” donations flow when the anti-LGBT rhetoric rings out.

And psychologically, it’s an easy hot button. The whole existence of LGBT people makes many heterosexuals nervous. I am not a psychologist, but I would lay odds that for many there are insecurities around their own sexual orientation that drives this.

The mere fact that the “gay panic” defense works in the judicial system as an excuse for assault and murder points to this as an underlying problem.

But I suspect the real reason the right has seized on LGBT rights as their favorite topic is more troubling: It’s what I call the “bogie man” factor.

Fear is a very good motivator. Just look at how we Americans cheerfully gave up our privacy rights after 9/11. We were afraid and we were told giving up our privacy would get us security.

The results are still very much open for debate.

Meanwhile politicians, pundits and clergy have found their available list of “bogie men” dwindling. Back in the 1950s, communists were the enemy and the cause of every ill under the sun. In the ’60s “hippies” were looked on as the root cause of problems.

In the last decade, “terrorists” became the main thing to fear, though it was a thinly disguised version of xenophobia and racism.

Now, one of the only things to fear is us, the LGBTS. We have become the bogie man for the current crop of fear mongers. We are being pointed to as the root of many of societies ills — and that is scapegoating, plain and simple.

Scapegoats are an easy way to explain complex problems, and in a world of 20-second sound bites, they are all too tempting for politicians, pundits and clergy to ignore.

Well, it’s time we goats stopped behaving like sheep and started butting our heads up against the people who would deny us our rights. If we do not continue to push back, we will continue to have our rights sacrificed on the alter of politics. And this goat is not ready for that.

Hardy Haberman is a longtime local LGBT activist and a member of Stonewall Democrats of Dallas. His blog is at http://dungeondiary.blogspot.com.

—  John Wright

Obama administration says it will no longer defend DOMA, calls law unconstitutional

President Barack Obama

LGBT advocates call decision historic, monumental

LISA KEEN | Keen News Service

The Obama administration made a blockbuster announcement Wednesday, Feb. 23, saying it has concluded that one part of the Defense of Marriage Act will not be able to pass constitutional muster in the 2nd Circuit and that DOJ would not defend that part of the law in two pending cases in that circuit.

It was a dramatic, unexpected, and significant move by the Obama administration and one that could trigger maneuvers by DOMA supporters to appoint an intervenor to defend the law. But beyond the eventual legal consequences of the announcement, the political impact was characterized by most LGBT leaders as historic and monumental.

“This is a monumental turning point in the history of the quest for equality for lesbian, gay and bisexual people,” said Jon Davidson, legal director for Lambda Legal Defense and Education Fund.

NCLR Executive Director Kate Kendell put it even more strongly.

“The President’s leadership on this issue has forever changed the landscape for LGBT people in this country,” said Kendell. “For the first time, the President and the Department of Justice have recognized that laws that harm same-sex couples cannot be justified. This is the beginning of the end, not just for the mean-spirited and indefensible Defense of Marriage Act, but for the entire panoply of laws that discriminate against same-sex couples.”

Attorney General Eric Holder announced Wednesday that the Department of Justice would not defend the constitutionality of Section 3 of DOMA in two of the four cases where that section of the law is currently under challenge. Those two cases are Pedersen v. OPM, filed by Gay & Lesbian Advocates & Defenders, and Windsor v. United States, filed by the ACLU.

Two other cases — in the 1st Circuit — also challenge Section 3, which prohibits federal recognition of any same-sex marriage, as does a more narrow case, Golinski v. OPM, in the 9th Circuit, at the district court level.

DOMA Section 2, which enables states to ignore valid marriage licenses issued to same-sex couples from other states, has not yet been challenged in court and Holder made no reference to it.

Since entering the White House, President Obama has said that DOMA should be repealed, but his administration continued to defend the law, saying, through various spokespersons, that Obama was concerned about setting a precedent that would make it easier for some future administration to pick and choose which laws it would defend.

Last summer, asked whether there isn’t a difference between enforcing existing laws and defending them in court, his Domestic Policy chief, Melody Barnes, said the president believed DOMA and “don’t ask, don’t tell” to be “discriminatory” but that he had not yet “made an argument” concerning their constitutionality.

“[W]e believe we have an obligation to defend the law if Congress had a rational basis for passing the law,” said Barnes.

In his announcement Wednesday, Attorney General Holder noted that the administration would still defend DOMA Section 3 in the two 1st Circuit cases because the 1st Circuit has ruled that rational basis is sufficient justification for treating people differently based on their sexual orientation. (He was apparently referring to the unsuccessful class action case challenging DADT). But Holder also noted that DOJ attorneys would argue that the court should, instead, apply a stricter test for DOMA.

Lambda Marriage Project Director Jenny Pizer said the 1st Circuit would make its own decision about whether to adopt Holder’s view.

“Any court is going to make its own determination about what the law requires,” said Pizer. “The government is usually given particular credence, but it is always court’s job to decide what the law requires.” But Pizer noted that the increasing volume of voices declaring the injustice of DOMA can have an influence, particularly given that the arguments made in support of DOMA “are not even coherent.”

It is possible — just as happened in California — that some other entity might attempt to mount its own defense of DOMA in the pending cases. Last October, U.S. Rep. Lamar Smith, R-Texas, filed a motion in the two 1st Circuit cases, seeking to be named intervenor-defendant. Smith, aided by the right-wing Alliance Defense Fund, said at the time that the Justice Department was providing “no defense at all” for DOMA. He withdrew his motion a few weeks later, without comment.

Lambda’s Pizer said she thinks it is “very likely” someone will ask the 1st Circuit for permission to serve as a defendant-intervenor in the DOMA cases. And she noted Congress has the authority to appoint its own counsel to defend the law. Such was the development in the California same-sex marriage case, Perry v. Schwarzenegger. The federal district court allowed the group that sought passage of Proposition 8, Yes on 8, to defend the law at trial. The 9th Circuit recently asked the California Supreme Court to determine whether any state law gives Yes on 8 the authority to appeal that district court decision in the federal appeals court.

A three-judge panel of the First Circuit is currently receiving written briefs from both sides in the DOMA cases and, presumably, will now receive a written brief from DOJ arguing that DOMA Section 3 should meet a heightened standard of review.

NCLR’s Minter said he believes the law “can’t survive” that standard.

Mary Bonauto, lead attorney on the DOMA cases for GLAD, could not be reached for comment. But ACLU Executive Director Anthony Romero, executive director of the ACLU, which has filed one of the 2nd Circuit cases, praised President Obama doing doing “the right thing.” Romero said President Obama’s action has “just propelled gay rights into the 21st century, where it belongs. Our government finally recognizes what we knew 14 years ago — that the so-called ‘Defense of Marriage Act’ is a gross violation of the Constitution’s guarantee of equal protection before the law. DOMA betrays core American values of fairness, justice and dignity for all, and has no place in America.”

© 2011 Keen News Service. All rights reserved.

—  John Wright

BREAKING: Government seeks emergency stay of ‘don’t ask don’t tell’ ruling from appeals court

The U.S. Department of Justice earlier today asked a federal appeals court for an emergency stay of a district judge’s order halting enforcement of “don’t ask don’t tell,” Politico reports.

DOJ attorneys have asked the U.S. Court of Appeals for the Ninth Circuit to rule on the request by tonight.

In other words, if you’re gay and you want to enlist in the military, we’d suggest you hurry up and do it.

Here’s the full text of the emergency stay request:

PPM143_101020_dadt_stay

—  John Wright

BREAKING: Judge denies government’s request to resume enforcement of ‘don’t ask don’t tell’

As expected, a federal district judge in California on Tuesday denied the government’s request to delay her injunction from last week halting the military’s enforcement of “don’t ask don’t tell.”

The Associated Press reports:

U.S. District Judge Virginia Phillips issued her ruling Tuesday after saying the government had not proven that her order would harm troops or impede efforts to implement new military regulations to deal with openly gay troops.

Justice Department officials say the Obama administration will appeal to the appellate court in San Francisco.

The military has promised to abide by her order as long as it remains in place.

Phillips declared the “don’t ask, don’t tell” policy unconstitutional Sept. 9. Under the 1993 law, the military cannot inquire into service members’ sexual orientation and punish them for it as long as they keep it to themselves.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, issued the following statement in response to Phillips decision Tuesday to deny the government’s request:

“By the judge keeping the injunction in place, lesbian and gay service members are protected another day, but the uncertainty has not gone away. The Department of Justice will immediately ask the 9th Circuit to stay the injunction. We’re talking about the careers of patriots, people who are on the frontlines serving our country – some of whom are highly decorated – and the court needs to keep the injunction in place. As the DOJ fights to keep this unconstitutional and oppressive law, we are monitoring active-duty clients’ cases and fielding calls every day to our hotline. During this interim period of uncertainty, service members must not come out. Our service members need finality. Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington.”

Below is the full text of Phillips’ ruling:

LCR v USA – ORDER Emergency Stay Denied

—  John Wright

BREAKING: Pentagon tells recruiters DADT is suspended, they must accept gay applicants

The Associated Press is reporting that Pentagon spokeswoman Cynthia Smith has announced that “top-level” guidance has been issued to recruiting commands telling them that the “don’t ask, don’t tell” policy prohibiting openly gay and lesbian people from serving in the military has been suspended, at least for now.

But recruiters have also been told to tell possible LGBT recruits that the moratorium could be re-instated at any time.

The move comes in the wake of U.S. District Judge Virginia Phillips’ ruling, in a case brought by the Log Cabin Republicans, that DADT is unconstitutional, and the injunction she issued last week ordering the military to halt enforcement of the ban.

The Department of Justice, which is defending the ban in court, has asked Phillips to delay enforcement of her injunction pending appeal, but Phillips said Monday, Oct. 18, that it is unlikely she’ll suspend the injunction. If she doesn’t, the DOJ is expected to ask an appellate court to do so.

—  admin