LGBT policy in the U.S. military
Encyclopedia
The attitude toward homosexuality of the United States military has historically been one of exclusion. The military has consistently held the official view that gay
, lesbian
, bisexual, and transgender
(LGBT
) people are unfit for military service. Policy against LGBT service personnel evolved independently in the various branches of the military before being unified and codified in military policy. In 1993, the former law detailing how LGBT people may serve, commonly referred to as "Don't ask, don't tell
" (DADT), was passed by the United States Congress
and signed into law by then-President Bill Clinton
.
Although there were isolated instances in which LGBT service personnel have met with limited success through lawsuits, traditionally efforts to end the ban either legislatively or through the courts had been unsuccessful. In 2010, two federal courts ruled the ban on openly gay service personnel unconstitutional and the United States Congress passed repeal legislation, which President Barack Obama has signed, and on July 6, 2011, a federal appeals court suspended the DADT policy. Don't ask, don't tell expired on September 20, 2011.
was drummed out
of the Continental Army
following his conviction at court-martial
on charges of sodomy
and perjury
. This could be seen as ironic, given that Friedrich Wilhelm von Steuben
, the man who established the training regimen for the Continental Army, had been accused of improper sexual contact with other males. Little is known about the LGBT experience through the 18th and 19th centuries, although instances of women cross-dressing as men to fight are known from the American Revolution and the Civil War.
and Winfred Overholser formulated guidelines for psychiatric screening for military inductees. While both believed homosexuals should not be inducted, their proposal did not explicitly exclude them. The United States Army Surgeon General's office issued a circular in 1941 that for the first time classified "homosexual proclivities" as disqualifying inductees for military service. The United States Navy
and the Selective Service adopted similar exclusionary policies. The Women's Army Corps
adopted a similar policy in 1944.
With the massive mobilization and deployment of troops for operations relating to World War II, it became impractical to convene court-martial boards for homosexual conduct offenses. Commanders instead issued blue discharge
s – a form of administrative military discharge
– to gay personnel instead. The blue discharge, which was also issued disproportionately to African American
s, was neither honorable nor dishonorable. However, blue discharge holders faced difficulties in civilian life because the blue discharge carried with it a negative association. The Veterans Administration
, denied blue-discharge veterans the benefits of the G.I. Bill as a general policy. In 1944, a policy directive ordered that homosexuals were to be committed to military hospitals, examined by psychiatrists and discharged under Regulation 615-360, section 8
.
Blue discharges were discontinued in May 1947, with discharges that would formerly have been blue now falling under one of two new headings, "general" and "undesirable". A general discharge was considered to be under honorable conditions – which is distinct from an "honorable discharge" – and an undesirable discharge was under conditions other than honorable – which, again, is distinct from a "dishonorable discharge". At the same time, however, the Army changed its regulations to ensure that homosexuals would not qualify for general discharges. Under this system, a servicemember found to be homosexual but who has not committed any homosexual acts while in service would receive an undesirable discharge. Those who were found guilty of engaging in homosexual conduct were dishonorably discharged.
In October 1949, the newly-consolidated Department of Defense
standardized anti-homosexual regulations across all branches of the military: "Homosexual personnel, irrespective of sex, should not be permitted to serve in any branch of the Armed Forces in any capacity, and prompt separation of known homosexuals from the Armed Forces is mandatory."
, some men pretended to be gay in order to avoid the draft. However, a significant number of gay and bisexual men and women did manage to avoid the pre-screening process and serve in the military, some with special distinction. For example, in the 1950s and 1960s, the Navy medical doctor Tom Dooley received national fame for his anti-Communist and humanitarian efforts in Vietnam. His homosexuality was something of an open secret in the Navy, but eventually he was forced to resign; the Navy subsequently conducted the first official study on sexual orientation and the Navy regulations and rules. In 1957, the Crittenden Report
found that gay-identified people were no more likely to be a security risk than heterosexual-identified people, and found there was no rational basis for excluding gay people from the Navy, although it stopped short of recommending a change in the regulations because of social mores
.
By the 1970s, a gay servicemember who had not committed any homosexual acts while in service would tend to receive a general discharge, while those found to have engaged in homosexual conduct would tend to receive undesirable discharges. However, the reality remained that gay servicemembers received a disproportionate percentage of undesirable discharges issued.
During the 1970s, several high-profile court challenges to the military's regulations on homosexuality occurred, with little success, and when such successes did occur it was when the plaintiff had been open about his homosexuality from the beginning or due to the existence of the "queen for a day" rule.
In 1981, the Department of Defense
issued a new regulation on homosexuality that was designed to ensure withstanding a court challenge by developing uniform and clearly defined regulations and justifications that made homosexual status, whether self-applied or by the military, and conduct grounds for discharge (DOD Directive 1332.14 (Enlisted Administrative Separations), January, 1981):
The directive justified the policy and removed the "queen for a day" rule that had prompted some courts to rule against the armed forces. However, the intent of the policy had also been to treat homosexuality as being akin to a disability discharge and thus ensure that anyone found engaging in homosexual activity and/or identifying as gay, would be separated with an honorable discharge. The DOD policy has since withstood most court challenges, although the United States Supreme Court
has refused to weigh in on the constitutionality of the policy, preferring to allow lower courts and the United States Congress
to settle the matter.
In the 1980s, many of the Democratic Party
presidential candidates expressed an interest in changing the regulations concerning homosexuality in the armed forces, and, as American social mores changed, public opinion began to express more sympathy with gay people in armed forces, at least to the extent that investigations into a serviceman or -woman's sexual behaviour and/or orientation were seen as a witch-hunt. "Gays in the military" became a political issue during the 1992 Presidential campaign
, when Clinton, the Democratic candidate, promised to lift the military's ban on homosexual and bisexual people.
In 1992, the United States General Accounting Office published a report entitled Defense Force Management: DOD's Policy on Homosexuality, that outlined the DOD policy on homosexuality and the reasons for it. The report also included excerpts from a previously unpublished 1988 Defense Personnel Security Research and Education Center study on homosexuality that made similar conclusions as the 1957 Crittenden Report.
(DADT) is the common term for the policy restricting the United States military from efforts to discover or reveal closeted gay, lesbian, and bisexual service members or applicants, while barring those that are openly gay, lesbian, or bisexual from military service. LGBT people are allowed to serve but must do so without coming out
or speaking about any homosexual relationships, including marriages or other familial attributes, while serving in the United States military. The policy was enacted in 1993 under the presidency of Bill Clinton
.
Legislative efforts to repeal DADT were initially unsuccessful. Members of Congress introduced the Military Readiness Enhancement Act
beginning in the 109th
Congress and re-introduced it in the subsequent two Congresses. In each instance the bill was assigned to a committee but no further action was taken.
In May 2010, the House of Representatives approved an amendment to the National Defense Authorization Act
for Fiscal Year 2011 that would repeal the relevant sections of the law 60 days after a study by the U.S. Department of Defense
is completed and the U.S. Defense Secretary, the chairman of the Joint Chiefs of Staff, and the U.S. President certify that repeal would not harm military effectiveness. On the same day the U.S. Senate Armed Services Committee
advanced the identical measure to be included in the Defense Authorization Act. The amended defense bill passed the U.S. House on later that month.
In September 2010, John McCain
led a successful filibuster against the debate on the Defense Authorization Act.
In December 2010, another filibuster prevented debate on the Defense Authorization Act during the lame duck session of Congress. Senators Joe Lieberman
and Susan Collins
introduced bill S.4022, the Don't Ask, Don't Tell Repeal Act of 2010
, in reaction to the failure to open discussion on the Defense Authorization Act. It includes the policy-related portions of the Defense Authorization Act. The stand-alone bill H.R. 6520 was sponsored by Patrick Murphy
and passed the House of Representatives via H.R. 2965 in a vote of 250 to 175 on December 15. On December 18, the Senate voted to end debate on S.4023, the Senate's bill identical to H.R.2965, via a cloture vote of 63-33. Later that day the Senate voted to repeal DADT 65-31. President Barack Obama signed the bill on December 22.
Repeal was not immediate. The Department of Defense first reviewed its policies and guidelines and drafted implementation regulations. Then the President, the Secretary of Defense and the Chairman of the Joint Chiefs of Staff certified that new regulations had been drafted and that the new regulations would not damage military cohesion and readiness. That certification triggered a 60-day waiting period at the end of which, on September 20, 2011, don't ask, don't tell expired. The Army became the first branch of the military to formally announce the end of the exclusionary policy.
Representative Duncan D. Hunter
announced plans in January 2011 to introduce a bill designed to delay DADT repeal by requiring that all of the chiefs of the armed services submit the same certification as the President, Defense Secretary, and Joint Chiefs Chairman.
, who fought to remain in the Air Force
after coming out
in 1975, and Perry Watkins
, who was drafted in 1967 despite disclosing his homosexuality on his induction papers. District Court judge Gerhard Gesell ordered Matlovich's reinstatement in 1980. Rather than return Matlovich to duty, the Air Force offered him a cash settlement of $160,000, which Matlovich accepted. The Army
tried to discharge Watkins several times, until the United States Court of Appeals for the Ninth Circuit
ordered his reinstatement in 1989 and the United States Supreme Court refused to hear the case. The appellate court, however, did not rule the military policy unconstitutional in Watkins's case; rather, it decided that simple equity mandated that the Army could not discharge Watkins for homosexuality when it knew of his sexual orientation all along. Other high-profile discharges included those of Vernon Berg, III
from the Navy, Joseph Steffan
from the Naval Academy, Margarethe Cammermeyer
from the Washington National Guard and Miriam Ben-Shalom from the Army Reserve.
Following the passage of "don't ask, don't tell", discharged personnel continued to seek redress through the courts, meeting with no success as the courts deferred to the military. Courts also often cited the Supreme Court's 1986 decision in Bowers v. Hardwick
, which upheld the constitutionality of state sodomy laws
. However, in 1996 the Supreme Court struck down an anti-gay state constitutional amendment in Romer v. Evans
and in 2003 the Court expressly reversed Bowers in Lawrence v. Texas
.
As for the U.S. Armed Forces
, the Court of Appeals for the Armed Forces
has ruled that the Lawrence v. Texas decision applies to Article 125 of the Uniform Code of Military Justice. Article 125 formerly banned all acts of sodomy but has been drastically narrowed. In both United States v. Stirewalt and United States v. Marcum
, the court ruled that the "conduct falls within the liberty interest identified by the Supreme Court," but went on to say that despite the application of Lawrence to the military, Article 125 can still be upheld in cases where there are "factors unique to the military environment" that would place the conduct "outside any protected liberty interest recognized in Lawrence." Examples of such factors could be fraternization, public sexual behavior, or any other factors that would adversely affect good order and discipline. the court found Article 125 constitutional in both Marcum and Stirewalt. Convictions for consensual sodomy have been overturned in military courts under the Lawrence in both United States v. Meno and United States v. Bullock.
In 2008, citing Lawrence, the Ninth Circuit Court of Appeals ruled in Witt v. Department of the Air Force
that "don't ask, don't tell" was subject to intermediate scrutiny
. The case returned to the trial court on September 13, 2010. On September 24, 2010, District Judge Ronald B. Leighton
ruled that plaintiff Margaret Witt's constitutional rights had been violated by her discharge and that she must be reinstated to the Air Force. The government filed an appeal with the Ninth Circuit on November 23 but made no attempt to have the trial court's ruling stayed pending the outcome. Witt had anticipated returning to her unit no later than January 2011, however, in a settlement announced on May 10, 2011, the Air Force agreed to drop its appeal and remove Witt's discharge from her military record. She will retire with full benefits.
On October 12, 2010, citing Witt, Federal Judge Virginia A. Phillips
ordered the military in Log Cabin Republicans v. United States to suspend and discontinue any investigation or discharge, separation, or other proceeding that have been commenced under don't ask, don't tell.
On October 14, an internal memo from the United States Air Force instructed its membership that the Department of Defense would immediately abide by the permanent injunction. On October 19. the request for a stay of the permanent injunction was denied in District Court. The Pentagon
also announced that it would no longer dismiss applications by openly gay recruits. The military started accepting gay recruits after "don't ask, don't tell" was struck down, but the Department of Defense
said new gay recruits are warned the repeal of the law may be overturned. "If they were to self admit that they are gay and want to enlist, we will process them for enlistment, but will tell them that the legal situation could change," Douglas Smith, spokesman for US Army Recruiting Command at Fort Knox, Kentucky, said.
On October 20, the government asked the Ninth Circuit for a stay, which the Ninth circuit granted. On November 5, the plaintiffs asked the Supreme Court
to vacate the 2-1 decision to keep the stay in place. Justice Kennedy
, who handles emergency motions from the Ninth Circuit, asked the government to respond by November 10. On November 12, the Supreme Court denied the application to vacate the stay. Enforcement of DADT resumed, under stricter guidelines.
It is unknown what effect the legislative repeal of DADT will have on the pending court cases. On December 29, 2010, the United States Department of Justice
requested that the Ninth Circuit suspend proceedings in LCR v. US, citing the repeal. Log Cabin Republicans
opposed the request, noting at the time that DADT was still on the books and personnel were still subject to discharge.
On July 6, 2011, the 9th Circuit Court of Appeals lifted its stay in Log Cabin Republicans v. United States, immediately enjoining the United States from barring openly gay people in the military.
, which was formed by four honorably discharged gay veterans in 1945. VBA was primarily social in nature and its membership peaked at 100. The group disbanded in 1954, and several of its members went on to form the New York chapter of homophile
advocacy group One, Inc.
.
At the height of the push to rescind the ban before DADT, Miriam Ben-Shalom joined with other discharged personnel to form the Gay, Lesbian & Bisexual Veterans of America. Following the passage of DADT, the Servicemembers Legal Defense Network
was formed to protect the rights of active duty personnel. Other organizations include Servicemembers United
which formed in 2005 by veterans of the wars in Iraq and Afghanistan, and groups associated with West Point (Knights Out
) and the Naval Academy (USNA Out
).
Transgender veterans have also formed organizations such as the Transgender American Veterans Association (TAVA), which continues to fight for the right for transgender individuals to serve in the military. Policy change regarding Gender Identity Disorder was not covered under the pending repeal of DADT. Activists, including transgender Navy veteran Autumn Sandeen, also played significant roles in protests of DADT. Despite often being discharged under mental health regulations, transgender veterans can, however, receive medical benefits from VA hospitals, and some have even managed to resume serving after transitioning.
Gay
Gay is a word that refers to a homosexual person, especially a homosexual male. For homosexual women the specific term is "lesbian"....
, lesbian
Lesbian
Lesbian is a term most widely used in the English language to describe sexual and romantic desire between females. The word may be used as a noun, to refer to women who identify themselves or who are characterized by others as having the primary attribute of female homosexuality, or as an...
, bisexual, and transgender
Transgender
Transgender is a general term applied to a variety of individuals, behaviors, and groups involving tendencies to vary from culturally conventional gender roles....
(LGBT
LGBT
LGBT is an initialism that collectively refers to "lesbian, gay, bisexual, and transgender" people. In use since the 1990s, the term "LGBT" is an adaptation of the initialism "LGB", which itself started replacing the phrase "gay community" beginning in the mid-to-late 1980s, which many within the...
) people are unfit for military service. Policy against LGBT service personnel evolved independently in the various branches of the military before being unified and codified in military policy. In 1993, the former law detailing how LGBT people may serve, commonly referred to as "Don't ask, don't tell
Don't ask, don't tell
"Don't ask, don't tell" was the official United States policy on homosexuals serving in the military from December 21, 1993 to September 20, 2011. The policy prohibited military personnel from discriminating against or harassing closeted homosexual or bisexual service members or applicants, while...
" (DADT), was passed by the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
and signed into law by then-President Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
.
Although there were isolated instances in which LGBT service personnel have met with limited success through lawsuits, traditionally efforts to end the ban either legislatively or through the courts had been unsuccessful. In 2010, two federal courts ruled the ban on openly gay service personnel unconstitutional and the United States Congress passed repeal legislation, which President Barack Obama has signed, and on July 6, 2011, a federal appeals court suspended the DADT policy. Don't ask, don't tell expired on September 20, 2011.
History
Antipathy to homosexuals serving in the United States military pre-dates the founding of the United States. On March 11, 1778, Lieutenant Frederick Gotthold EnslinFrederick Gotthold Enslin
Frederick Gotthold Enslin was the focus of one of three possible cases of sodomy documented in the Continental Army under General George Washington. The case began with a charge against an ensign for slander against another soldier...
was drummed out
Drumming out
Drumming out is the historical act of being dishonorably dismissed from military service to the sound of a drum. In modern figurative use it refers to any act of expulsion or dismissal in disgrace.-Origin:...
of the Continental Army
Continental Army
The Continental Army was formed after the outbreak of the American Revolutionary War by the colonies that became the United States of America. Established by a resolution of the Continental Congress on June 14, 1775, it was created to coordinate the military efforts of the Thirteen Colonies in...
following his conviction at court-martial
Court-martial
A court-martial is a military court. A court-martial is empowered to determine the guilt of members of the armed forces subject to military law, and, if the defendant is found guilty, to decide upon punishment.Most militaries maintain a court-martial system to try cases in which a breach of...
on charges of sodomy
Sodomy
Sodomy is an anal or other copulation-like act, especially between male persons or between a man and animal, and one who practices sodomy is a "sodomite"...
and perjury
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
. This could be seen as ironic, given that Friedrich Wilhelm von Steuben
Friedrich Wilhelm von Steuben
Friedrich Wilhelm August Heinrich Ferdinand von Steuben , also referred to as the Baron von Steuben, was a Prussian-born military officer who served as inspector general and Major General of the Continental Army during the American Revolutionary War...
, the man who established the training regimen for the Continental Army, had been accused of improper sexual contact with other males. Little is known about the LGBT experience through the 18th and 19th centuries, although instances of women cross-dressing as men to fight are known from the American Revolution and the Civil War.
Early 20th century
There was no unified homosexuality policy across the various branches of the military until 1949. Before then, the various branches tended to court-martial personnel caught engaging in homosexual conduct for sodomy and issue them a dishonorable discharge. In 1940, psychiatrists Harry Stack SullivanHarry Stack Sullivan
Harry Stack Sullivan was a U.S. psychiatrist whose work in psychoanalysis was based on direct and verifiable observation .-Life and works:Sullivan was a child of Irish immigrants and allegedly grew up in an...
and Winfred Overholser formulated guidelines for psychiatric screening for military inductees. While both believed homosexuals should not be inducted, their proposal did not explicitly exclude them. The United States Army Surgeon General's office issued a circular in 1941 that for the first time classified "homosexual proclivities" as disqualifying inductees for military service. The United States Navy
United States Navy
The United States Navy is the naval warfare service branch of the United States Armed Forces and one of the seven uniformed services of the United States. The U.S. Navy is the largest in the world; its battle fleet tonnage is greater than that of the next 13 largest navies combined. The U.S...
and the Selective Service adopted similar exclusionary policies. The Women's Army Corps
Women's Army Corps
The Women's Army Corps was the women's branch of the US Army. It was created as an auxiliary unit, the Women's Army Auxiliary Corps on 15 May 1942 by Public Law 554, and converted to full status as the WAC in 1943...
adopted a similar policy in 1944.
With the massive mobilization and deployment of troops for operations relating to World War II, it became impractical to convene court-martial boards for homosexual conduct offenses. Commanders instead issued blue discharge
Blue discharge
A blue discharge was a form of administrative military discharge formerly issued by the United States beginning in 1916. It was neither honorable nor dishonorable. The blue ticket became the discharge of choice for commanders seeking to remove homosexual service members from the ranks...
s – a form of administrative military discharge
Military discharge
A military discharge is given when a member of the armed forces is released from their obligation to serve.-United States:Discharge or separation should not be confused with retirement; career U.S...
– to gay personnel instead. The blue discharge, which was also issued disproportionately to African American
African American
African Americans are citizens or residents of the United States who have at least partial ancestry from any of the native populations of Sub-Saharan Africa and are the direct descendants of enslaved Africans within the boundaries of the present United States...
s, was neither honorable nor dishonorable. However, blue discharge holders faced difficulties in civilian life because the blue discharge carried with it a negative association. The Veterans Administration
United States Department of Veterans Affairs
The United States Department of Veterans Affairs is a government-run military veteran benefit system with Cabinet-level status. It is the United States government’s second largest department, after the United States Department of Defense...
, denied blue-discharge veterans the benefits of the G.I. Bill as a general policy. In 1944, a policy directive ordered that homosexuals were to be committed to military hospitals, examined by psychiatrists and discharged under Regulation 615-360, section 8
Section 8 (military)
The term Section 8 refers to a category of discharge from the United States military for reason of being mentally unfit for service. It also came to mean any serviceperson given such a discharge or behaving as if deserving such a discharge...
.
Blue discharges were discontinued in May 1947, with discharges that would formerly have been blue now falling under one of two new headings, "general" and "undesirable". A general discharge was considered to be under honorable conditions – which is distinct from an "honorable discharge" – and an undesirable discharge was under conditions other than honorable – which, again, is distinct from a "dishonorable discharge". At the same time, however, the Army changed its regulations to ensure that homosexuals would not qualify for general discharges. Under this system, a servicemember found to be homosexual but who has not committed any homosexual acts while in service would receive an undesirable discharge. Those who were found guilty of engaging in homosexual conduct were dishonorably discharged.
In October 1949, the newly-consolidated Department of Defense
United States Department of Defense
The United States Department of Defense is the U.S...
standardized anti-homosexual regulations across all branches of the military: "Homosexual personnel, irrespective of sex, should not be permitted to serve in any branch of the Armed Forces in any capacity, and prompt separation of known homosexuals from the Armed Forces is mandatory."
Late 20th century
The success of the armed forces in pre-screening self-identified gay and bisexual people from the 1940s through 1981 remains in dispute; during the Vietnam WarVietnam War
The Vietnam War was a Cold War-era military conflict that occurred in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. This war followed the First Indochina War and was fought between North Vietnam, supported by its communist allies, and the government of...
, some men pretended to be gay in order to avoid the draft. However, a significant number of gay and bisexual men and women did manage to avoid the pre-screening process and serve in the military, some with special distinction. For example, in the 1950s and 1960s, the Navy medical doctor Tom Dooley received national fame for his anti-Communist and humanitarian efforts in Vietnam. His homosexuality was something of an open secret in the Navy, but eventually he was forced to resign; the Navy subsequently conducted the first official study on sexual orientation and the Navy regulations and rules. In 1957, the Crittenden Report
Crittenden Report
The Crittenden Report was the outcome of a 1957 investigation on the part of a United States Navy Board of Inquiry, officially known as the Board Appointed to Prepare and Submit Recommendations to the Secretary of the Navy for the Revision of Policies, Procedures and Directives Dealing With...
found that gay-identified people were no more likely to be a security risk than heterosexual-identified people, and found there was no rational basis for excluding gay people from the Navy, although it stopped short of recommending a change in the regulations because of social mores
Mores
Mores, in sociology, are any given society's particular norms, virtues, or values. The word mores is a plurale tantum term borrowed from Latin, which has been used in the English language since the 1890s....
.
By the 1970s, a gay servicemember who had not committed any homosexual acts while in service would tend to receive a general discharge, while those found to have engaged in homosexual conduct would tend to receive undesirable discharges. However, the reality remained that gay servicemembers received a disproportionate percentage of undesirable discharges issued.
During the 1970s, several high-profile court challenges to the military's regulations on homosexuality occurred, with little success, and when such successes did occur it was when the plaintiff had been open about his homosexuality from the beginning or due to the existence of the "queen for a day" rule.
In 1981, the Department of Defense
United States Department of Defense
The United States Department of Defense is the U.S...
issued a new regulation on homosexuality that was designed to ensure withstanding a court challenge by developing uniform and clearly defined regulations and justifications that made homosexual status, whether self-applied or by the military, and conduct grounds for discharge (DOD Directive 1332.14 (Enlisted Administrative Separations), January, 1981):
The directive justified the policy and removed the "queen for a day" rule that had prompted some courts to rule against the armed forces. However, the intent of the policy had also been to treat homosexuality as being akin to a disability discharge and thus ensure that anyone found engaging in homosexual activity and/or identifying as gay, would be separated with an honorable discharge. The DOD policy has since withstood most court challenges, although the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
has refused to weigh in on the constitutionality of the policy, preferring to allow lower courts and the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
to settle the matter.
In the 1980s, many of the Democratic Party
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
presidential candidates expressed an interest in changing the regulations concerning homosexuality in the armed forces, and, as American social mores changed, public opinion began to express more sympathy with gay people in armed forces, at least to the extent that investigations into a serviceman or -woman's sexual behaviour and/or orientation were seen as a witch-hunt. "Gays in the military" became a political issue during the 1992 Presidential campaign
United States presidential election, 1992
The United States presidential election of 1992 had three major candidates: Incumbent Republican President George Bush; Democratic Arkansas Governor Bill Clinton, and independent Texas businessman Ross Perot....
, when Clinton, the Democratic candidate, promised to lift the military's ban on homosexual and bisexual people.
In 1992, the United States General Accounting Office published a report entitled Defense Force Management: DOD's Policy on Homosexuality, that outlined the DOD policy on homosexuality and the reasons for it. The report also included excerpts from a previously unpublished 1988 Defense Personnel Security Research and Education Center study on homosexuality that made similar conclusions as the 1957 Crittenden Report.
Don't ask, don't tell
Don't ask, don't tellDon't ask, don't tell
"Don't ask, don't tell" was the official United States policy on homosexuals serving in the military from December 21, 1993 to September 20, 2011. The policy prohibited military personnel from discriminating against or harassing closeted homosexual or bisexual service members or applicants, while...
(DADT) is the common term for the policy restricting the United States military from efforts to discover or reveal closeted gay, lesbian, and bisexual service members or applicants, while barring those that are openly gay, lesbian, or bisexual from military service. LGBT people are allowed to serve but must do so without coming out
Coming out
Coming out is a figure of speech for lesbian, gay, bisexual, and transgender people's disclosure of their sexual orientation and/or gender identity....
or speaking about any homosexual relationships, including marriages or other familial attributes, while serving in the United States military. The policy was enacted in 1993 under the presidency of Bill Clinton
Presidency of Bill Clinton
The United States Presidency of Bill Clinton, also known as the Clinton Administration, was the executive branch of the federal government of the United States from January 20, 1993 to January 20, 2001. Clinton was the first Democratic president since Franklin D. Roosevelt to win a second full term...
.
Legislative efforts to repeal DADT were initially unsuccessful. Members of Congress introduced the Military Readiness Enhancement Act
Military Readiness Enhancement Act
The Military Readiness Enhancement Act is a bill introduced to the U.S. House of Representatives in the 109th and 110th Congress by Marty Meehan and the 111th Congress by Ellen Tauscher...
beginning in the 109th
109th United States Congress
The One Hundred Ninth United States Congress was the legislative branch of the United States, composed of the United States Senate and the United States House of Representatives, from January 3, 2005 to January 3, 2007, during the fifth and sixth years of George W. Bush's presidency. House members...
Congress and re-introduced it in the subsequent two Congresses. In each instance the bill was assigned to a committee but no further action was taken.
In May 2010, the House of Representatives approved an amendment to the National Defense Authorization Act
National Defense Authorization Act
The National Defense Authorization Act is the name of a United States federal law that has been enacted for each of the past 48 fiscal years to specify the budget and expenditures of the United States Department of Defense.-See also:...
for Fiscal Year 2011 that would repeal the relevant sections of the law 60 days after a study by the U.S. Department of Defense
United States Department of Defense
The United States Department of Defense is the U.S...
is completed and the U.S. Defense Secretary, the chairman of the Joint Chiefs of Staff, and the U.S. President certify that repeal would not harm military effectiveness. On the same day the U.S. Senate Armed Services Committee
United States Senate Committee on Armed Services
The Committee on Armed Services is a committee of the United States Senate empowered with legislative oversight of the nation's military, including the Department of Defense, military research and development, nuclear energy , benefits for members of the military, the Selective Service System and...
advanced the identical measure to be included in the Defense Authorization Act. The amended defense bill passed the U.S. House on later that month.
In September 2010, John McCain
John McCain
John Sidney McCain III is the senior United States Senator from Arizona. He was the Republican nominee for president in the 2008 United States election....
led a successful filibuster against the debate on the Defense Authorization Act.
In December 2010, another filibuster prevented debate on the Defense Authorization Act during the lame duck session of Congress. Senators Joe Lieberman
Joe Lieberman
Joseph Isadore "Joe" Lieberman is the senior United States Senator from Connecticut. A former member of the Democratic Party, he was the party's nominee for Vice President in the 2000 election. Currently an independent, he remains closely affiliated with the party.Born in Stamford, Connecticut,...
and Susan Collins
Susan Collins
Susan Margaret Collins is the junior United States Senator from Maine and a member of the Republican Party. First elected to the Senate in 1996, she is the ranking member of the Senate Committee on Homeland Security and Governmental Affairs...
introduced bill S.4022, the Don't Ask, Don't Tell Repeal Act of 2010
Don't Ask, Don't Tell Repeal Act of 2010
The Don't Ask, Don't Tell Repeal Act of 2010 is a landmark federal statute that establishes a legal process for ending the Don't ask, don't tell policy , which since 1993 prevented openly gay and lesbian people from serving in the United States Armed Forces.The Act did not immediately repeal the...
, in reaction to the failure to open discussion on the Defense Authorization Act. It includes the policy-related portions of the Defense Authorization Act. The stand-alone bill H.R. 6520 was sponsored by Patrick Murphy
Patrick Murphy (politician)
Patrick Joseph Murphy is the former U.S. Representative for , serving from 2007 to 2011. He is a member of the Democratic Party....
and passed the House of Representatives via H.R. 2965 in a vote of 250 to 175 on December 15. On December 18, the Senate voted to end debate on S.4023, the Senate's bill identical to H.R.2965, via a cloture vote of 63-33. Later that day the Senate voted to repeal DADT 65-31. President Barack Obama signed the bill on December 22.
Repeal was not immediate. The Department of Defense first reviewed its policies and guidelines and drafted implementation regulations. Then the President, the Secretary of Defense and the Chairman of the Joint Chiefs of Staff certified that new regulations had been drafted and that the new regulations would not damage military cohesion and readiness. That certification triggered a 60-day waiting period at the end of which, on September 20, 2011, don't ask, don't tell expired. The Army became the first branch of the military to formally announce the end of the exclusionary policy.
Representative Duncan D. Hunter
Duncan D. Hunter
Duncan Duane Hunter is the U.S. Representative for , serving since 2009. He is a member of the Republican Party. He is the son of his predecessor Duncan Hunter...
announced plans in January 2011 to introduce a bill designed to delay DADT repeal by requiring that all of the chiefs of the armed services submit the same certification as the President, Defense Secretary, and Joint Chiefs Chairman.
Court action
Some LGBT military personnel sought to overturn the military ban. Among the earliest were Leonard MatlovichLeonard Matlovich
Technical Sergeant Leonard P. Matlovich was a Vietnam War veteran, race relations instructor, and recipient of the Purple Heart and the Bronze Star....
, who fought to remain in the Air Force
United States Air Force
The United States Air Force is the aerial warfare service branch of the United States Armed Forces and one of the American uniformed services. Initially part of the United States Army, the USAF was formed as a separate branch of the military on September 18, 1947 under the National Security Act of...
after coming out
Coming out
Coming out is a figure of speech for lesbian, gay, bisexual, and transgender people's disclosure of their sexual orientation and/or gender identity....
in 1975, and Perry Watkins
Perry Watkins
Perry Watkins was an African-American gay man and one of the first soldiers to have some success in challenging the ban against homosexuals in the United States Military.-Biography:...
, who was drafted in 1967 despite disclosing his homosexuality on his induction papers. District Court judge Gerhard Gesell ordered Matlovich's reinstatement in 1980. Rather than return Matlovich to duty, the Air Force offered him a cash settlement of $160,000, which Matlovich accepted. The Army
United States Army
The United States Army is the main branch of the United States Armed Forces responsible for land-based military operations. It is the largest and oldest established branch of the U.S. military, and is one of seven U.S. uniformed services...
tried to discharge Watkins several times, until the United States Court of Appeals for the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
ordered his reinstatement in 1989 and the United States Supreme Court refused to hear the case. The appellate court, however, did not rule the military policy unconstitutional in Watkins's case; rather, it decided that simple equity mandated that the Army could not discharge Watkins for homosexuality when it knew of his sexual orientation all along. Other high-profile discharges included those of Vernon Berg, III
Vernon Berg, III
Vernon E. “Copy” Berg was U. S. Naval Academy graduate and artist. He was the first Naval Academy alumnus to actively fight the policies against homosexuality in the services. After Mr...
from the Navy, Joseph Steffan
Joseph Steffan
Joseph Steffan is an American lawyer and gay activist. He was expelled from the U.S. Naval Academy in Annapolis in 1987 after revealing his homosexuality to his commanding officer. At the time he was six weeks from graduation and one of the six highest-ranking midshipmen in the Academy...
from the Naval Academy, Margarethe Cammermeyer
Margarethe Cammermeyer
Margarethe "Grethe" Cammermeyer is a former colonel in the Washington National Guard and a gay rights activist. Born in Oslo, Norway, she became a United States citizen in 1960. In 1961 she joined the Army Student Nurse Program. She received a B.S. in Nursing in 1963 from the University of...
from the Washington National Guard and Miriam Ben-Shalom from the Army Reserve.
Following the passage of "don't ask, don't tell", discharged personnel continued to seek redress through the courts, meeting with no success as the courts deferred to the military. Courts also often cited the Supreme Court's 1986 decision in Bowers v. Hardwick
Bowers v. Hardwick
Bowers v. Hardwick, , is a United States Supreme Court decision that upheld, in a 5-4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals. Seventeen years after Bowers v. Hardwick, the Supreme Court...
, which upheld the constitutionality of state sodomy laws
Sodomy laws in the United States
Sodomy laws in the United States, which outlawed a variety of sexual acts, were historically universal. While they often targeted sexual acts between persons of the same sex, many statutes employed definitions broad enough to outlaw certain sexual acts between persons of different sexes as well,...
. However, in 1996 the Supreme Court struck down an anti-gay state constitutional amendment in Romer v. Evans
Romer v. Evans
Romer v. Evans, 517 U.S. 620 , is a landmark United States Supreme Court case dealing with civil rights and state laws. It was the first Supreme Court case to deal with LGBT rights since Bowers v...
and in 2003 the Court expressly reversed Bowers in Lawrence v. Texas
Lawrence v. Texas
Lawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
.
As for the U.S. Armed Forces
United States armed forces
The United States Armed Forces are the military forces of the United States. They consist of the Army, Navy, Marine Corps, Air Force, and Coast Guard.The United States has a strong tradition of civilian control of the military...
, the Court of Appeals for the Armed Forces
United States Court of Appeals for the Armed Forces
The United States Court of Appeals for the Armed Forces or CAAF is an Article I court that exercises worldwide appellate jurisdiction over members of the United States armed forces on active duty and other persons subject to the Uniform Code of Military Justice...
has ruled that the Lawrence v. Texas decision applies to Article 125 of the Uniform Code of Military Justice. Article 125 formerly banned all acts of sodomy but has been drastically narrowed. In both United States v. Stirewalt and United States v. Marcum
United States v. Marcum
United States of America v. Technical Sergeant Eric P. Marcum, 60 M.J. 198 is a United States Court of Appeals for the Armed Forces decision which, among other issues, upheld Article 125 of the Uniform Code of Military Justice against a facial substantive due process challenge, and ruled that...
, the court ruled that the "conduct falls within the liberty interest identified by the Supreme Court," but went on to say that despite the application of Lawrence to the military, Article 125 can still be upheld in cases where there are "factors unique to the military environment" that would place the conduct "outside any protected liberty interest recognized in Lawrence." Examples of such factors could be fraternization, public sexual behavior, or any other factors that would adversely affect good order and discipline. the court found Article 125 constitutional in both Marcum and Stirewalt. Convictions for consensual sodomy have been overturned in military courts under the Lawrence in both United States v. Meno and United States v. Bullock.
In 2008, citing Lawrence, the Ninth Circuit Court of Appeals ruled in Witt v. Department of the Air Force
Witt v. Department of the Air Force
Witt v. Department of the Air Force, 527 F.3d 806 is a federal lawsuit challenging the constitutionality of , the now repealed law which excluded openly homosexual people from serving in the United States military, commonly known as Don't ask, don't tell . The United States Court of Appeals for...
that "don't ask, don't tell" was subject to intermediate scrutiny
Intermediate scrutiny
Intermediate scrutiny, in U.S. constitutional law, is the second level of deciding issues using judicial review. The other levels are typically referred to as rational basis review and strict scrutiny ....
. The case returned to the trial court on September 13, 2010. On September 24, 2010, District Judge Ronald B. Leighton
Ronald B. Leighton
Ronald Bruce Leighton is a United States federal judge.Born in Stockton, California, Leighton received a B.A. from Whitworth College in 1973 and a J.D. from the University of California, Hastings College of Law in 1976. He was in private practice in Tacoma, Washington from 1976 to 2002.On January...
ruled that plaintiff Margaret Witt's constitutional rights had been violated by her discharge and that she must be reinstated to the Air Force. The government filed an appeal with the Ninth Circuit on November 23 but made no attempt to have the trial court's ruling stayed pending the outcome. Witt had anticipated returning to her unit no later than January 2011, however, in a settlement announced on May 10, 2011, the Air Force agreed to drop its appeal and remove Witt's discharge from her military record. She will retire with full benefits.
On October 12, 2010, citing Witt, Federal Judge Virginia A. Phillips
Virginia A. Phillips
Virginia A. Phillips is a judge of the United States District Court for the Central District of California.-Early life and education:...
ordered the military in Log Cabin Republicans v. United States to suspend and discontinue any investigation or discharge, separation, or other proceeding that have been commenced under don't ask, don't tell.
On October 14, an internal memo from the United States Air Force instructed its membership that the Department of Defense would immediately abide by the permanent injunction. On October 19. the request for a stay of the permanent injunction was denied in District Court. The Pentagon
The Pentagon
The Pentagon is the headquarters of the United States Department of Defense, located in Arlington County, Virginia. As a symbol of the U.S. military, "the Pentagon" is often used metonymically to refer to the Department of Defense rather than the building itself.Designed by the American architect...
also announced that it would no longer dismiss applications by openly gay recruits. The military started accepting gay recruits after "don't ask, don't tell" was struck down, but the Department of Defense
United States Department of Defense
The United States Department of Defense is the U.S...
said new gay recruits are warned the repeal of the law may be overturned. "If they were to self admit that they are gay and want to enlist, we will process them for enlistment, but will tell them that the legal situation could change," Douglas Smith, spokesman for US Army Recruiting Command at Fort Knox, Kentucky, said.
On October 20, the government asked the Ninth Circuit for a stay, which the Ninth circuit granted. On November 5, the plaintiffs asked the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
to vacate the 2-1 decision to keep the stay in place. Justice Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
, who handles emergency motions from the Ninth Circuit, asked the government to respond by November 10. On November 12, the Supreme Court denied the application to vacate the stay. Enforcement of DADT resumed, under stricter guidelines.
It is unknown what effect the legislative repeal of DADT will have on the pending court cases. On December 29, 2010, the United States Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
requested that the Ninth Circuit suspend proceedings in LCR v. US, citing the repeal. Log Cabin Republicans
Log Cabin Republicans
The Log Cabin Republicans is an organization that works within the Republican Party to advocate equal rights for all Americans, including gays and lesbians in the United States with state chapters and a national office in Washington, D.C...
opposed the request, noting at the time that DADT was still on the books and personnel were still subject to discharge.
On July 6, 2011, the 9th Circuit Court of Appeals lifted its stay in Log Cabin Republicans v. United States, immediately enjoining the United States from barring openly gay people in the military.
LGBT veterans
LGBT veterans have formed many organizations for both political and social purposes. The earliest of these was the Veterans Benevolent AssociationVeterans Benevolent Association
The Veterans Benevolent Association was an organization for LGBT veterans of the United States armed forces. The VBA was founded in New York City in 1945 by four honorably discharged gay veterans....
, which was formed by four honorably discharged gay veterans in 1945. VBA was primarily social in nature and its membership peaked at 100. The group disbanded in 1954, and several of its members went on to form the New York chapter of homophile
Homophile
The word homophile is an alternative to the word for homosexual or gay. The homophile movement also refers to the gay rights movement of the 1950s and '60s....
advocacy group One, Inc.
ONE, Inc.
ONE, Inc. was an early gay rights organization in the United States.The idea for a publication dedicated to homosexuals emerged from a Mattachine Society discussion meeting held on October 15, 1952....
.
At the height of the push to rescind the ban before DADT, Miriam Ben-Shalom joined with other discharged personnel to form the Gay, Lesbian & Bisexual Veterans of America. Following the passage of DADT, the Servicemembers Legal Defense Network
Servicemembers Legal Defense Network
The Servicemembers Legal Defense Network is a non-profit legal services, watchdog, and policy organization founded in the United States in 1993. It is dedicated to ending discrimination and harassment of gay and lesbian U.S. military personnel negatively affected by the "Don't ask, don't tell"...
was formed to protect the rights of active duty personnel. Other organizations include Servicemembers United
Servicemembers United
Servicemembers United is an LGBT-interest organization dedicated to the repeal of the United States armed forces' gay-exclusionary policy, commonly known as "don't ask, don't tell". The organization, formerly known as "Call to Duty", formed in 2005 by veterans....
which formed in 2005 by veterans of the wars in Iraq and Afghanistan, and groups associated with West Point (Knights Out
Knights Out
Knights Out is an organization of West Point alumni, staff and faculty who support the rights of lesbian, gay, bisexual, and transgender people to serve openly in the U.S. military and who wish to educate young officers about the issues and contributions of LGBT troops...
) and the Naval Academy (USNA Out
USNA Out
USNA Out is an American non-profit organization of lesbian, gay, bisexual and transgender Alumni of the U. S. Naval Academy in Annapolis, Maryland...
).
Transgender veterans have also formed organizations such as the Transgender American Veterans Association (TAVA), which continues to fight for the right for transgender individuals to serve in the military. Policy change regarding Gender Identity Disorder was not covered under the pending repeal of DADT. Activists, including transgender Navy veteran Autumn Sandeen, also played significant roles in protests of DADT. Despite often being discharged under mental health regulations, transgender veterans can, however, receive medical benefits from VA hospitals, and some have even managed to resume serving after transitioning.
See also
- Barry WinchellBarry WinchellBarry Winchell was an infantry soldier in the United States Army, whose murder by a fellow soldier, Calvin Glover, became a point of reference in the ongoing debate about the law known as "Don't ask, don't tell", which required the US military to discharge service members based on sexual...
, Army soldier whose 1999 murder led Bill Clinton to order a review of DADT - Holmes v. California National GuardHolmes v. California National GuardAndrew Holmes v. California National Guard, 124 F.3d 1126 was a federal court case heard by the Ninth Circuit Court of Appeals, that discussed the "don't ask, don't tell" policy toward gay and lesbian members of the California National Guard of the United States.The court supported the "don't ask,...
, federal 1998 case concerning DADT - Newport sex scandalNewport Sex ScandalThe Newport sex scandal arose in 1919 from the United States Navy's investigation of illicit sexual behavior on the part of Navy personnel in Newport, Rhode Island. It targeted homosexual contacts between Navy personnel and the civilian population...
- Section 8Section 8 (military)The term Section 8 refers to a category of discharge from the United States military for reason of being mentally unfit for service. It also came to mean any serviceperson given such a discharge or behaving as if deserving such a discharge...
- Unfriendly FireUnfriendly FireUnfriendly Fire: How the Gay Ban Undermines the Military and Weakens America is an American 2009 political book by Nathaniel Frank that argues bans and restrictions on openly gay servicemen and women in the United States armed forces has weakened the military and national security...
, a 2009 book by Nathaniel Frank that argues against DADT - United States Navy dog handler hazing scandalUnited States Navy dog handler hazing scandalThe United States Navy dog handler hazing scandal refers to a pattern of misconduct engaged in by members of the United States Navy at Naval Support Activity Bahrain between 2004 and 2006. Naval investigators documented nearly 100 incidents of abuse committed against several members of a Military...
- USS Iowa turret explosionUSS Iowa turret explosionThe USS Iowa turret explosion occurred in the Number Two 16-inch gun turret of the United States Navy battleship USS Iowa on April 19, 1989. The explosion in the center gun room killed 47 of the turret's crewmen and severely damaged the gun turret itself...
- OutServeOutServeOutServe is an underground network of GLB actively-serving military personnel, which launched publicly on 26 July 2010. It is co-directed by a 2009 graduate of the US Air Force Academy, Josh Seefried and Ty Walrod...
Further reading
- Archer, Bert (2004). The End of Gay: And the Death of Heterosexuality. Thunder's Mouth Press. ISBN 1560256117.
- Bérubé, Allan (1990). Coming Out Under Fire: The History of Gay Men and Women in World War Two. New York, The Penguin Group.
- Humphreys, Laud (1972). Out of the Closets: The Sociology of Homosexual Liberation. New Jersey, Prentice-Hall. ISBN 0136453252.
- Jones, Major Bradley K. (January 1973). "The Gravity of Administrative Discharges: A Legal and Empirical Evaluation" The Military Law Review 59:1–26.
- Katz, Jonathan (1976). Gay American History: Lesbians and Gay Men in the U.S.A. : a Documentary. Crowell. ISBN 0690011644.
- Shilts, Randy (1993). Conduct Unbecoming: Gays & Lesbians in the U.S. Military Vietnam to the Persian Gulf. New York, St. Martin's Press. ISBN 031209261X