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Would a New President Clinton Repeat DOMA's Mistakes?

Would a New President Clinton Repeat DOMA's Mistakes?

Hillary Clinton

It's time to ask Hillary Clinton whether she's prepared to veto anti-LGBT legislation outright, or if she'd consider 'defensive action,' like she contends DOMA and DADT were for her husband.

In a recent interview with Rachel Maddow, former secretary of State Hillary Clinton stated that in 1996 she and her husband, President Bill Clinton, supported the so-called Defense of Marriage Act as a "defensive action" against a threatened constitutional amendment banning same-sex marriages.

Activists who were working on lesbian and gay equality in the early and mid-1990s remember things differently, and when Buzzfeed's Chris Geidner took a deep dive into the Clinton Library documents, he found "no evidence" of such defensive posturing. During his 1992 campaign, Bill Clinton opposed same-sex marriage, and he came out early in 1996 in support of DOMA, Geidner notes.

It's worth noting that in the 1990s, opposing marriage equality was the popular opinion, both politically and publicly. In March 1996, 68 percent of Americans believed marriage between same-sex couples "should not be valid," according to Gallup's historical polling. To be a member of Congress, beltway big-wig, or president opposing DOMA was a tough road. And voting against DOMA didn't necessarily mean being in favor of same-sex marriage.

For example, Sen. Bernie Sanders, then representing Vermont in the U.S. House, voted against the bill because he didn't believe the issues DOMA covered should be legislated by the federal government in the first place. But he opposed full marriage equality in Vermont initially, instead supporting his state's first-in-the-nation legislation for civil unions. He recently told Maddow that he adopted a "not right now" approach to endorsing full marriage equality.

But Hillary Clinton's continued support for portions of DOMA past 1996 belies her portrayal of the bill as a "defensive action." In 2008, when then-Sen. Clinton was running for president, her stated position only supported repealing section 3 of DOMA, which forbade the federal government from recognizing legal same-sex marriages performed in a handful of states (and which was ultimately ruled unconstitutional by the U.S. Supreme Court in its 2013 decision in Windsor v. U.S.)

Meanwhile, then-candidate Barack Obama supported repealing both substantive sections of DOMA, Section 3 and Section 2, which declared that states did not have to recognize legal same-sex marriages performed in other states. At the time, neither candidate was in favor of marriage equality.

Secretary Clinton didn't publicly come out in favor of marriage equality until March 2013, after she left the State Department, and nearly a year after President Obama announced that it was "important for [him] to go ahead and affirm" that same-sex couples should be afforded equal marriage rights. As no shortage of pundits and political adversaries have pointed out, by the time Secretary Clinton came out for marriage equality, anyone with a finger to the wind could tell that it was a politically safe position for any Democrat to take.

Which leads us to the present, on the verge of a new Clinton presidency. Whether one buys Clinton's "defensive action" narrative wholesale, or considers the secretary's slow evolution to be callous political calculus, the question lingers: When it comes to the next LGBT civil rights battle, would a President Hillary Clinton follow her husband's footsteps and take so-called "defensive action" that, by many estimates, sets progress back by a decade? Or would she live up to her powerful 2011 proclamation that "gay rights are human rights?"

With near-certainty, a President Hillary Clinton seems unlikely to compromise on the proposed federal Equality Act. She pledged as much during a sweeping speech to Human Rights Campaign volunteers last month. And as long as even one house of Congress is under Republican control, it's extremely unlikely the Equality Act would pass into law -- so compromise on the language of the bill prior to having both houses under Democratic control doesn't appear to be something a new President Clinton would need to discuss.

And let's be honest: the politically treacherous stance for a president Hillary Clinton won't be over issues involving sexual orientation. The difficult stance, where Clinton might follow in her husband's compromising path, would be on issues involving gender identity.

Don't believe me? Take a look at the vicious, transphobic campaign just waged by anti-equality forces in Houston, which successfully repealed broad nondiscrimination protections by peddling the demonstrably false claim that equal access in employment, housing, and public accommodation would allow "men in women's bathrooms." (It wouldn't, for the record -- in more than 200 cities nationwide with trans-inclusive ordinances, there have been zero confirmed reports of anyone "pretending" to be trans to harass women in restrooms.)

While the Obama administration has made unprecedented strides to defend the dignity of transgender people in education, housing, and employment, it would be naive to think conservative members of Congress won't take the lessons learned in Houston to try and roll back that progress.

If Congress sends to her presidential desk bills that would harm transgender people in a way that DOMA and "don't ask, don't tell," harmed lesbian, gay, and bisexual people, would a President Hillary Clinton veto those bills?

Of course, it's impossible to predict what bills may or may not be introduced, but if history is any guide, it seems more than possible that the future Madame President could be presented with anti-trans amendments to larger bills, often called "riders."

As the Pentagon prepares to lift its longstanding ban on military service by out transgender Americans (who weren't impacted by the repeal of DADT), what are the chances that a reauthorization bill for the National Defense Authorization Act landing on President Clinton's desk could include a rider barring gender-affirming surgery for service members? Even though overwhelming medical, military, and psychological consensus insists that transgender people are fully capable of serving honorably, both before and after gender-affirming treatment, and that for many individuals such treatment is medically necessary, would President Hillary Clinton veto the NDAA if it had a transphobic rider?

Or envision multiple riders tacked on to reauthorization bills for Medicare, the Veterans Administration, and Social Security, barring all gender-affirming health care (which could include everything from hormones to gender-affirming surgeries), for all medical providers receiving federal funds. Would the next President Clinton have the guts to stand up for not just women's health, but the health of trans women and men, too?

Alternately, the current Democratic frontrunner's criminal justice reform speech in April recognized that "Black incarceration is a serious problem in America," according to Talking Points Memo's summary. Clinton also called for an end to the "era of mass incarceration." But when it's time to sign legislation aimed at reforming the criminal justice system, will Clinton recognize the unique needs of transgender inmates, who are more likely to be assaulted, placed in solitary confinement, and punished more severely than their cisgender counterparts? Obama's Department of Justice has increasingly thrown its weight behind trans prisoners seeking access to medically necessary care. Would a Clinton DOJ follow suit, or would she accept a "compromise" that fails to protect the right of trans prisoners?

Similarly, the Department of Education under President Obama has repeatedly affirmed that transgender students must be granted equal access to the gender-segregated facilities and teams that correspond with their gender identity. But given the success of transphobic, bathroom-focused scare tactics in Houston, it's not hard to imagine that anti-trans forces would try to reign in the Department of Education's ability to mandate such equal access in public schools, on the backs of inauthentic concerns about "parental rights" and student "privacy." Would a new President Clinton call out that disingenuous strategy for what it is?

It's not as if any of these kinds of riders on appropriation bills couldn't come out of something that resembles our modern Congressional chambers. Would Democrats in vulnerable Senate seats be willing to cast hard votes on behalf of transgender people if these transphobic riders arrived in their chamber? And should such bills make it through the House and Senate, would a President Hillary Clinton veto broad appropriation bills because of anti-transgender riders?

I'm never going to have a chance to interview presidential candidate Clinton (or Sanders, for that matter) this election cycle, but perhaps someone will get a chance to ask her about all this. Because if Secretary Clinton is claiming that DOMA was defensive, the next natural question becomes on which LGB, and especially T, issue in the future would she consider a similar "defensive" position?

As we say in the military, it's important to know what issues one will "die on a hill" for. And any commander-in-chief should be prepared to answer that question.

AUTUMN SANDEEN retired from the U.S. Navy in 2000 with 20 years of service. In 2010, she and other LGBT veterans were jailed twice in direct actions at the White House advocating repeal of "don't ask, don't tell." In the past she blogged for Pam's House Blend, and currently she is an editor at Transadvocate and a columnist for LGBT Weekly.

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