Last night at the Human Rights Campaign dinner President Barack Obama delivered his first big speech on lgbt issues since becoming President.   There was much anticipation for the speech, as some in the gay community feel that the President has not moved fast enough on the issues affecting our community.

What is “an LGBT Issue”?

But what impressed me about the speech was not that he failed to set a date or timetable for the repeal of  “Don’t Ask, Don’t Tell,” or that he offered no new legislative strategy to pass ENDA, but rather the “queer-ness” of his remarks.   After a pretty funny joke where he thanked HRC for inviting him to be the opening act for Lady Gaga, he acknoweldged that many in the audience held the view that “progress had not come fast enough” on lgbt issues.  He challenged the assembled homo audience to think expansively about what it means for something to be an “lgbt issue”:

I think it’s important to remember that there is not a single issue that my administration deals with on a daily basis that does not touch on the lives of the lgbt community.  We all have a stake in reviving this ecomony.  We all have a stake in putting people back to work.   We all have a stake in improving our schools and in acheiving quality, affordable healthcare.   We all have a stake in meeting the difficult challenges we face in Iraq and Afghanistan.

These and other remarks signaled the President’s strong anti-identitarian and non-institutional approach to civil rights, an approach not shared by the likes of HRC and many other lgbt rights groups.   Rejecting the notion that “our issues” are exhausted by those that have “our names” on them, such as “gay marriage,”  “gays in the military,” or a “gay-rights bill,” Obama suggested that the community take on a much more ambitious agenda.  Take the marriage equality campaign, for instance.  Many lgbt people seek the legal recognition of their relationships in order to gain their partner’s health benefits.  But there are many, many lesbian and gay people who can’t or won’t marry someone with good benefits, and a right to marry a same sex partner won’t help them.  Health care reform that secures a right to decent health care, regardless of one’s marital status or one’s ability to hook up with someone with good benefits, surely should be on “our agenda,” as Obama put it to us in his HRC speech.

In a sense the President was subtly acknowledging that there are large parts of the lgbt community that would never attend one of these dinners, and that don’t see HRC as “their” organization.  I’m going to guess that very few of the people attending the dinner – all of whom paid at least $250 to attend (and many paid much more) – had been laid off in the last six months and/or were among the upwards of 47 million Americans without health insurance.   Indeed, the President was one of the very few people of color in the room who wasn’t serving the food and clearing the tables.   If you check out HRC’s website, it’s health tab says nothing about the pending health care reform legislation in Congress or whether HRC has taken a position on the legislation.  It’s clearly not part of “their agenda.”

In his HRC speech, President Obama also challenged his audience to think expansively about what it means to be gay or lesbian:

For, while some may wish to define you solely for your sexual orientation or gender identity alone, you know and I know that none of us wants to be defined by just one part of what makes us whole.

This was perhaps the queerest moment of the speech.  Rather than invoking the now-common, creepily nationalistic moniker “gay-American” that Jim McGreevy tragically wrapped himself in when he came out in 2004, Obama’s speech urged his audience to focus more on interests than on identity.

Rather than reading Obama’s remarks as somehow falling short when it comes to ticking off the gay agenda, maybe we should listen more closely.  Could it be that his support of civil unions instead of marriage rights for same sex couples, and his prioritization of health care and jobs over the immediate repeal of “Don’t Ask, Don’t Tell” mark how he’s actually out in front of “us”?   More progressive than “we” are?

Take a moment and read Lisa Duggan’s piece in the Nation from last summer, What’s Right with Utah, in which she describes the successful and radically progressive political campaign going on in Salt Lake City undertaken by the lgbt community after they lost the chance to gain marriage rights when the state constitution was amended barring such unions.  They regrouped, found straight partners with whom to work in coalition, and have taken on much broader reforms than what they could have accomplished with “mere” marriage rights for lesbian and gay couples.  Brilliantly, they found local Mormons who opposed gay marriage, but who said they weren’t homophobic and took them at their word.  They found that of this group 62 percent supported employment nondiscrimination laws, 56 percent supported fair housing laws and 73 percent supported granting adult designees of state employees health insurance coverage. They also found that 56 percent backed legal protections like inheritance rights and job protection for LGBT people.  When they could no longer ask for marriage they found unlikely partners with whom they could ask for much more than what marriage would have provided.

This is the subtle premise of Obama’s speech last night:  think critically and progresively about what it means for something to be part of “the gay agenda.”   His remarks cautioned a kind of self-ghettoization that is always at risk when one’s politics are premised on and invested in a claim to identity that demands that political and legal victories be framed in terms of a ratification of that identity.  So too, there is a lesson in these remarks for the groups that speak on behalf of that identity, such as HRC.

The good news is that there are organizations that see the connection between, for instance, the health care public option and the interests of lgbt and queer people.  Queers for Economic Justice is perhaps the best but not the only example.  See their work on health care here.

The National ACLU and its New York affiliate announced this week a change in policy by the New York State National Guard that it will no longer administer mandatory pregnancy tests to female Guard members and will not automatically dismiss female members of the New York Guard when they become pregnant, rather they will be treated like male guards who have temporary disabilities.  This brings New York National Guard policy into conformance with federal and state pregnancy discrimination laws.

If only the Department of Defense would abandon it’s “heterosexuality test” for federal military service!

The ACLU describes the policy reform thus:

Under a new policy announced today, women in the New York National Guard serving on a state active duty task force will no longer be required to take mandatory pregnancy tests or face dismissal from the force if they become pregnant. Instead, they will be treated the same as men who become injured or disabled during a state active duty mission. The change occurred in response to objections raised by the American Civil Liberties Union and the New York Civil Liberties Union, the ACLU’s New York State affiliate.

Soldiers in the New York National Guard had alerted the ACLU about a discriminatory policy requiring women in active duty positions to take periodic pregnancy tests and to periodically sign a form agreeing that becoming pregnant would end their assignments and cancel all associated health benefits, including health benefits for their families. In contrast, male National Guard soldiers on state active duty whose spouses became pregnant were not fired and their families retained health benefits.

“I hope this change will enable women to come forward if they feel they are being discriminated against. Many soldiers were against this policy of pregnancy testing but feared they would lose their jobs if they spoke up,” said Tammy Sullivan, a soldier in the New York National Guard. “The new policy is a step in the right direction to protecting a woman’s right to privacy and ending discrimination against women in the military.”

The ACLU and NYCLU brought their concerns to Governor David A. Paterson’s administration, which resulted in discussions that culminated with this new policy.

“It’s blatantly unfair to dismiss women from National Guard state active duty missions if they are pregnant or refuse to sign a form agreeing to be kicked off a mission if they become pregnant,” said Ariela Migdal, staff attorney with the ACLU Women’s Rights Project. “We are pleased that state officials looked into this discriminatory practice as soon as it was brought to their attention and took swift steps to change the policy.”

Under the new policy, being pregnant no longer automatically disqualifies soldiers from state active duty service, pregnancy tests are not required and women soldiers do not have to sign a special form. The policy now simply requires all soldiers to sign a form indicating their understanding that in order to remain on a state active duty mission they must be physically able to perform all tasks associated with their mission, including physical training drills.

However, under the new policy, pregnant soldiers will be dismissed from state active duty when their pregnancy advances to the point that they cannot physically perform the mission. No alternative assignments, like desk jobs, are available.

“While we are pleased that this blatant discrimination has been addressed, the new policy will still have a disparate impact on women soldiers who will eventually become unable to serve if they become pregnant,” said Galen Sherwin, Director of the Reproductive Rights Project at the NYCLU. “No one who is willing and able to contribute to missions of such vital importance should be dismissed and have their health benefits cut simply because they are unable to perform certain tasks due to injury or pregnancy.”

The old New York National Guard “Statement of Understanding: Pregnancy” can be found online at:
www.aclu.org/womensrights/employ/38935lgl20090304.html

The revised form, “Statement of Understanding of Conditions of Assignment,” can be found online at:
www.aclu.org/womensrights/employ/38934lgl20090223.html

A podcast interview with Tammy Sullivan can be found online at:
www.aclu.org/multimedia/audio/38951res20090306.html.

- Katherine Franke

News sources report today that the Obama Administration has determined to reverse the previous administration’s refusal to be a signatory to UN statement calling for an end to rights abuses based on sexual orientation and gender identity.  As we blogged earlier here and here, the declaration was signed by all 27 European Union members as well as Japan, Australia, Mexico and three dozen other countries.  The US was the only Western country not to sign on – an international embarrassment.

Today’s news reports misstate the substance of the resolution – it reaches not only the criminalization of sodomy, but violence, harassment, discrimination, exclusion, stigmatization and prejudice on the basis of sexual orientation and gender identity.

This change may signal two important shifts in policy – 1. that the US is joining the world community as an ardent defender of human rights, and 2. that protections against sexual orientation and gender identity discrimination have made their way into the consensus of the bundle of rights protected by international human rights law.

Both are overdue, both are about time in coming.  This willingness on the part of the Obama Administration to change course on this resolution suggests a different tact on other homophobic federal policies such as “Don’t Ask, Don’t Tell,” the failure to provide health benefits to the partners and families of gay and lesbian federal employees etc.

Text of the declaration

1. We reaffirm the principle of universality of human rights, as enshrined in the Universal Declaration of Human Rights whose 60th anniversary is celebrated this year, Article 1 of which proclaims that “all human beings are born free and equal in dignity and rights”;
2. We reaffirm that everyone is entitled to the enjoyment of human rights without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, as set out in Article 2 of the Universal Declaration of Human Rights and Article 2 of the International Covenants on Civil and Political, Economic, Social and Cultural Rights, as well as in article 26 of the International Covenant on Civil and Political Rights;
3. We reaffirm the principle of non-discrimination which requires that human rights apply equally to every human being regardless of sexual orientation or gender identity;
4. We are deeply concerned by violations of human rights and fundamental freedoms based on sexual orientation or gender identity;
5. We are also disturbed that violence, harassment, discrimination, exclusion, stigmatisation and prejudice are directed against persons in all countries in the world because of sexual orientation or gender identity, and that these practices undermine the integrity and dignity of those subjected to these abuses;
6. We condemn the human rights violations based on sexual orientation or gender identity wherever they occur, in particular the use of the death penalty on this ground, extrajudicial, summary or arbitrary executions, the practice of torture and other cruel, inhuman and degrading treatment or punishment, arbitrary arrest or detention and deprivation of economic, social and cultural rights, including the right to health;
7. We recall the statement in 2006 before the Human Rights Council by fifty four countries requesting the President of the Council to provide an opportunity, at an appropriate future session of the Council, for discussing these violations;
8. We commend the attention paid to these issues by special procedures of the Human Rights Council and treaty bodies and encourage them to continue to integrate consideration of human rights violations based on sexual orientation or gender identity within their relevant mandates;
9. We welcome the adoption of Resolution AG/RES. 2435 (XXXVIII-O/08) on “Human Rights, Sexual Orientation, and Gender Identity” by the General Assembly of the Organization of American States during its 38th session in 3 June 2008;
10. We call upon all States and relevant international human rights mechanisms to commit to promote and protect human rights of all persons, regardless of sexual orientation and gender identity;
11. We urge States to take all the necessary measures, in particular legislative or administrative, to ensure that sexual orientation or gender identity may under no circumstances be the basis for criminal penalties, in particular executions, arrests or detention.
12. We urge States to ensure that human rights violations based on sexual orientation or gender identity are investigated and perpetrators held accountable and brought to justice;
13. We urge States to ensure adequate protection of human rights defenders, and remove obstacles which prevent them from carrying out their work on issues of human rights and sexual orientation and gender identity.

- Katherine Franke

The New York Times reports today about Lisa Pagan, a member of the U.S. Army Individual Ready Reserves, who brought her two small children (ages 3 and 4) with her when she had been reactivated for service and reported for duty at Ft. Benning, GA, hoping to dramatize her request for an exemption from service on the grounds of family hardship.  Pagan, who had done one tour of duty in Iraq as a truck driver, had been recalled to active duty but claimed that she should be exempted from serving because there was no one to care for her children.  Seems that her husband, Travis, had to travel a great deal for his job in sales, and could not be depended upon to provide child-care for their children.   The Army’s regulations provide that in the case of extreme personal hardship, amounting to “an adverse impact on a Reservist’s dependents resulting from his or her mobilization,” the Reservist may be transferred to another division of the Reserves or discharged. 32 CFR §44.4(f)

Pagan’s plea for exemption was granted this week when she was honorably discharged from the Army.  (The Individual Ready Reserves (IRR) is comprised of former full-time soldiers who still have time remaining on their military commitments. When Army hopefuls sign their enlistment contracts, they are agreeing to an eight-year stint in the service. After four years or so, soldiers who do not wish to become lifers are given discharges and return to the civilian world. But they’re still on the hook as IRR reservists and are supposed to keep the Army apprised of their whereabouts.  Slate has a helpful story about how the IRR functions.)

Pagan’s case raises some difficult questions for those of us concerned with gender-based justice.  On the one hand, the Army, just like any other employer, needs to be sensitive to the dependency needs of the people it employs.  In some respects, the military has taken a lead in addressing the childcare needs of it’s employees.  Several years ago the National Women’s Law Center applauded the model the military set when it came to childcare.  Yet there have also been countless stories in the news of men and women who have been called up to service who are unable to provide adequate care for their children while they are deployed abroad.  A year and a half ago,  Senators Charles Schumer and Representative Carolyn Maloney issues a report entitled: Helping Military Moms Balance Family and Longer Deployments.  Among other things, the report noted that:

• Women make up approximately 14.3 % of the active duty military (one in seven)
• 38% of the women in the active duty forces are mothers
• 44% of the men in the active duty forces are fathers
• Approximately 11 percent of women in the military are single mothers compared to 4 percent of single fathers
• 93 percent of military spouses are women

On the other hand, when I read the Times story I thought: what about the children’s father?  Can’t he take care of the kids?  If their positions had been reversed, and the IRR member called up for active duty had been a man, do you think the military would have allowed him to plead “family hardship” if his wife was unwilling to quit her job to take care of the kids?  Why isn’t the father in the picture in any meaningful way as having a responsibility for taking care of the kids?  His job seems to come first.  For her, childcare comes first.

In fact, the question about why the father isn’t in the picture was made quite clear when you compare the picture (above) that ran with the story in the New York Times, the Houston Chronicle and many other papers with the picture below that ran in the Boston Globe and USA Today:

Even though Dad is included in this picture, it’s interesting that he’s just sort of sitting over there by himself, while the kids are clearly attached to their mother.

I concur with commentators such at Rebekah Sanderlin who writes a blog about family life in the military that this is a hard case, but I don’t think we can adequately assess the legitimacy of Pagan’s plea for exemption from service when men continue to be exempted from service at home.

- Katherine Franke

The U.S. Army and U.S. Air Force Judge Advocate General.

Hopefully this will be the last hiring season in which law schools are asked to bracket their objections to employers who explicitly discriminate on the basis of sexual orientation for the better financial benefit of the University (the Solomon Amendment threatens cutting off all federal funds to every unit of a university if one unit – in this case the law school – refuses to allow the military to recruit on campus).  President Obama has pledged to overrturn the “Don’t Ask, Don’t Tell” policy in favor a policy that does not condition service in the many branches of the military (including service by lawyers) on heterosexuality. It’s our job to keep the pressure on him to do so.

In the meantime, the Columbia Law School faculty has again issued it’s formal objection to the law school being forced to allow military recruiters on-campus access to our students.  For now, we meet discrimination with speech:

We, the undersigned members of the faculty of Columbia Law School, strongly oppose the federal law known as the Solomon Amendment.  Through punitive financial coercion, this law requires the Law School to allow representatives of the United States armed services to engage in discriminatory recruitment on our campus through the Law School’s Career Services office.  This recruitment directly violates the Law School’s longstanding non-discrimination policy, which forbids employers from recruiting on our campus if they discriminate based on, inter alia, sexual orientation.  Under the “don’t ask, don’t tell” law, which bars openly lesbian, gay and bisexual individuals from military service, military employers discriminate explicitly based on sexual orientation.

In March 2006, in Fair v. Rumsfeld, the United States Supreme Court upheld the Solomon Amendment against a challenge based on the First Amendment rights to speech and association.   The Court held that law schools could be required to permit military recruiters access to campus, notwithstanding the schools’ non-discrimination policies. However, Chief Justice Roberts, speaking for a unanimous Court, also made clear that “[s]tudents and faculty are free to associate to voice their disapproval of the military’s message.”

Accordingly, we reaffirm our commitment to an educational environment at the Law School that is free from discrimination based on sexual orientation, as well as discrimination based on race, color, religion, national origin, sex, age, and handicap or disability.

The faculty recognizes with regret the harms to which our lesbian, gay and bisexual students may be subject as a result of the military recruiters’ presence on campus in violation of our non-discrimination policy.

The faculty further regrets the harm to the United States and to the rule of law occasioned by a federal law that excludes highly qualified lawyers from serving in the United States armed forces.

MATTHEW ADLER (visiting)
JOSÉ ALVAREZ
MARK BARENBERG
GEORGE A. BERMANN
VIVIAN BERGER
BARBARA ARONSTEIN BLACK
VINCENT BLASI
CHRISTINA BURNETT
SARAH CLEVELAND
JOHN COFFEE
KIMBERLÉ CRENSHAW
LORI DAMROSCH
MICHAEL DOYLE
ARIELA DUBLER
HAROLD EDGAR
RANDALL EDWARDS
ELIZABETH F. EMENS
JEFFREY FAGAN
ROBERT A. FERGUSON
MERRITT B. FOX
KATHERINE FRANKE
RICHARD N. GARDNER
PHILIP GENTY
JANE GINSBURG
SUZANNE GOLDBERG
HARVEY GOLDSCHMID
KENT GREENAWALT
JACK GREENBERG
JAMAL GREENE
MICHAEL HELLER
LOUIS HENKIN
JIM HOOVER
CONRAD A. JOHNSON
OLATI JOHNSON
WILLIAM K. JONES
AVERY W. KATZ
GREG LASTOWKA (visiting)
BENJAMIN LIEBMAN
CAROL B. LIEBMAN
LANCE LIEBMAN
EDWARD LLOYD
LOUIS LOWENSTEIN
GILLIAN METZGER
CURTIS MILHAUPT
EBEN MOGLEN
TREVOR MORRISON
ARTHUR MURPHY
KATHARINA PISTOR
ANDRZEJ RAPACZYNSKI
ALEX RASKOLNIKOV
JOSEPH RAZ
DANIEL RICHMAN
PETER ROSENBLUM
CHARLES SABEL
CAROL SANGER
BARBARA A. SCHATZ
ELIZABETH SCOTT
ROBERT E. SCOTT
THEODORE SHAW
WILLIAM SIMON
MICHAEL I. SOVERN
JANE SPINAK
PETER L. STRAUSS
SUSAN STURM
KENDALL THOMAS
MATTHEW WAXMAN
PATRICIA WILLIAMS
JOHN WITT
TIM WU
MARY ZULACK

Last week when John McCain and Barack Obama were at Columbia to discuss “national service” in a non-partisan way, both candidates criticized the University for failing to reinstate ROTC activities on campus, asserting, as Senator Obama put it, that the University’s policy denies “young people….at Columbia….an option in participating in military service.”

The Naval ROTC program at Columbia ended in 1969 after students successfully objected to the connection between the University and the “military industrial complex” during the height of the Vietnam War.  Part of what sparked the campus riots in 1968 was the discovery of documents in the International Law Library detailing Columbia’s heretofore secret institutional affiliation with the Institute for Defense Analyses (IDA), a weapons research think-tank affiliated with the U.S. Department of Defense.

Since then Columbia students have had the option of participating in ROTC by joining ROTC programs at neighboring colleges and universities while attending Columbia as full-time students (e.g., Fordham and Manhattan). A handful of Columbia students exercise this option every year.

In 2005 the faculty, students and administrators representing their constituencies in Columbia University’s Senate voted against reinstatement of ROTC at Columbia, on grounds that the military’s “don’t ask, don’t tell” policy on sexual orientation violates the University’s long established ban against a presence on campus of any organization that discriminates against individuals on the basis of race, religion, national origin, political preference or sexual preference. To give ROTC a place at Columbia would violate this policy.

I sincerely hope that Obama’s remarks about ROTC at Columbia did not signal support for “don’t ask, don’t tell” or a diminished commitment to the idea of non-discrimination in the military when it comes to gay men and lesbians.  I don’t think they do, but it would be worth it to contact the Obama campaign to reinforce the importance of repealing the don’t ask, don’t tell regulation, and the federal law (known as the Solomon Amendment) that punishes any university that refuses to allow recruiters for the armed forces from recruiting on campus.

Many members of the Columbia Law faculty signed the following letter last fall in response to the presence of military recruiters from the JAG Corps coming to the law school.  We will be circulating a similar letter this fall when the JAG Corps recruiters come again to do on-campus interviews.

We, the undersigned members of the faculty of Columbia Law School, strongly oppose the federal law known as the Solomon Amendment.  Through punitive financial coercion, this law requires the Law School to allow the United States armed services to recruit on our campus through the Law School’s Career Services office.  This recruitment directly violates the Law School’s longstanding non-discrimination policy, which forbids employers from recruiting on our campus if they discriminate based on, inter alia, sexual orientation.  Under the “don’t ask, don’t tell” law, which bars openly lesbian, gay and bisexual individuals from military service, military employers discriminate explicitly based on sexual orientation.

In March 2006, in Fair v. Rumsfeld , the United States Supreme Court upheld the Solomon Amendment against a challenge based on the First Amendment rights to speech and association. The Court held that law schools could be required to permit military recruiters access to campus, notwithstanding the schools’ non-discrimination policies. However, Chief Justice Roberts, speaking for a unanimous Court, also made clear that “[s]tudents and faculty are free to associate to voice their disapproval of the military’s message.”

Accordingly, we reaffirm our commitment to an educational environment at the Law School that is free from discrimination based on sexual orientation, as well as discrimination based on race, color, religion, national origin, sex, age, and handicap or disability.  The faculty recognizes with regret the particular harm to which our lesbian, gay and bisexual students will be subject as a result of the military recruiters’ presence on campus in violation of our non-discrimination policy.

JOSÉ ALVAREZ
MARK BARENBERG
GEORGE A. BERMANN
VIVIAN BERGER
BARBARA ARONSTEIN BLACK
VINCENT BLASI
SARAH CLEVELAND
JOHN COFFEE
SHERRY COLB
LORI DAMROSCH
MICHAEL C. DORF
MICHAEL DOYLE
ARIELA DUBLER
HAROLD EDGAR
RANDALL EDWARDS
ELIZABETH F. EMENS
JEFFREY FAGAN
ROBERT A. FERGUSON
MERRITT B. FOX
KATHERINE FRANKE
RICHARD N. GARDNER
PHILIP GENTY
SUZANNE GOLDBERG
HARVEY GOLDSCHMID
JACK GREENBERG
MICHAEL HELLER
CONRAD A. JOHNSON
OLATI JOHNSON
WILLIAM K. JONES
AVERY W. KATZ
JOHN LEUBSDORF
BENJAMIN LIEBMAN
CAROL B. LIEBMAN
LANCE LIEBMAN
EDWARD LLOYD
LOUIS LOWENSTEIN
GILLIAN METZGER
CURTIS MILHAUPT
EBEN MOGLEN
KATHARINA PISTOR
ANDRZEJ RAPACZYNSKI
ALEX RASKOLNIKOV
JOSEPH RAZ
PETER ROSENBLUM
CAROL SANGER
BARBARA A. SCHATZ
ELIZABETH SCOTT
ROBERT E. SCOTT
WILLIAM SIMON
MICHAEL I. SOVERN
JANE SPINAK
JANE STAPLETON
PETER L. STRAUSS
SUSAN STURM
KENDALL THOMAS
MATTHEW WAXMAN
PATRICIA WILLIAMS
JOHN WITT
TIM WU
MARY ZULACK