DADT repeal starts Tuesday, but will discrimination continue?

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

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

Lisa Keen  |  Keen News Service
lisakeen@me.com

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

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

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

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

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

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panel is considering a motion by the Department of Justice to declare the Log Cabin lawsuit moot since Congress has repealed DADT.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

© 2011 Keen News Service. All rights reserved.

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

—  Kevin Thomas

Gay military support group launches magazine

BRIAN WITTE | Associated Press

ANNAPOLIS, Md. — A support group for gay military service members launched an online magazine to provide information about pending repeal of the Pentagon’s “don’t ask, don’t tell” policy, and printed copies could be on large bases by May, the group’s co-director said Monday.

An active-duty Air Force officer who is the co-director of OutServe said the magazine of the same name seeks to raise awareness that the change is coming. He uses the pseudonym JD Smith because he is gay and has lingering concerns about whether he could be discharged before the policy is fully implemented.

“The magazine helps set the tone, the idea, that it’s actually going to happen and normalizes it,” he told The Associated Press on Monday. “The more we normalize it, the more accepted it becomes.”

The free magazine will be published bi-monthly. OutServe has about 3,000 members, and the group plans to distribute copies in places like hospital waiting rooms and on stands at community centers on military bases where other publications are available.

Military officials did not respond to an email seeking comment Monday.

The magazine also will include articles about different OutServe chapters and information of interest to gay military members. Smith said group members believe the visual presence of a magazine will highlight that gays already serve proudly in the military.

The first electronic issue includes an article on a meeting between representatives in the group and the Pentagon Repeal Implementation Team. The article pointed out that the services plan to complete training at various points this summer relating to the policy’s repeal. The article also said team representatives could not give an expected repeal date because the decision is being based on training completion and how well unit commanders believe units are prepared.

The electronic edition also includes information about different gay support groups in the military, such as the Servicemembers Legal Defense Network, which provides free legal advice to service members affected by the policy.

President Barack Obama signed a law in December to repeal the 17-year-old “don’t ask, don’t tell” policy, which requires soldiers, sailors, airmen and Marines to keep their homosexuality a secret or face dismissal. Final repeal implementation does not go into effect until 60 days after the president, defense secretary and chairman of the Joint Chiefs of Staff certify that lifting the ban won’t hurt the military’s ability to fight.

—  John Wright

OutMilitary.com connects gay servicemembers

John McKinnon

John McKinnon said he launched OutMilitary.com on Dec. 28 — right after the Senate voted to repeal “don’t ask, don’t tell.”

OutMilitary.com is a social networking site for active military and their supporters including gay and lesbian military retirees. McKinnon calls the site a Facebook clone as far as usability.

After Reuters and ABC News picked up a story about the site, OutMilitary began adding several hundred new members a day. Today, about 2,000 members belong to the network.

McKinnon said they are setting up groups for every military base and creating events. Members have told him the site is “quite liberating.” Many active duty personnel have joined under their own names and listed their current location. Others have disguised their names and locations because “don’t ask, don’t tell” is still in effect and new service members may still be processed under the law.

Membership cuts across all branches and ranks.

— David Taffet

This article appeared in the Dallas Voice print edition Feb. 4, 2011.

—  John Wright

DADT could stay in effect through May, despite repeal

Active duty servicemember, vets say few among the rank and file care whether someone is gay, but repeal will lift the burden of secrecy

DAVID TAFFET | Staff Writer
taffet@dallasvoice.com

Even though the military’s anti-gay “don’t ask, don’t tell” policy was repealed in December, remains in place until military are able to decide how best to implement repeal and what benefits will be offered to spouses of gay and lesbian military personnel.

Defense Undersecretary Clifford Stanley and Gen. James Cartwright held a press conference Friday, Jan, 28, at the Pentagon to give the first report on progress toward implementation, offering only a hint of an actual schedule. They said then that training is set to begin in February and should take three months.

Under those conditions, DADT will remain in effect at least until May, and gay and lesbians servicemembers can still be discharged under the policy.

In January, the U.S. Government Accountability Office issued the report Military Personnel: Personnel and Cost Data Associated with Implementing DOD’s Homosexual Conduct Policy evaluating the cost DADT has had on the military.

Over the past five years 3,664 people have been discharged under DADT at an average cost of $52,800 per dismissal.

Jeffrey S., an airman first class based at Beale Air Force Base in Northern California, said that from his experience, recent discharges under DADT involved people the armed forces were trying to get rid of for other reasons as well.

(Because DADT is still in effect and, according to Stanley, new cases continue to be processed under the law, the airman’s name and the names of over gay servicemembers interviewed for this article have been disguised to the extent he requested.)

Jeffrey said that since graduating from basic training, he has lived fairly openly in the Air Force. The GAO report shows, however, that almost three-quarters of all DADT discharges were from the Army and Navy.

Jeffrey also said that he was trained for specific technical duties and would be hard to replace. But that hasn’t stopped discharges from other branches where service members were pursued despite their language specialties and other skills. The report indicates that of the total number of people dismissed under DADT over the past five years, 39 percent had critical occupations.

The statistics do indicate that many who were separated from the service had additional issues. Only 57 percent of those released during that period received an honorable discharge.

The other 1,580 service members were given a general discharge or worse, indicating additional situations, whether real or trumped up.

Sean T. was recently honorably discharged from the Army after serving five years, including two tours of duty in Iraq. He had been based at Fort Hood in Texas during part of his enlistment. But after not finding a civilian job, Sean is trying to reenlist and is currently in the Army Reserves.

He said his sexual orientation is more of an issue in the Reserves than in his Army unit. He knew a number of other gay soldiers while serving and no one he knew personally were discharged under DADT.

“There were usually other reasons,” he said of those he had heard were discharged under DADT. “Patterns of misconduct.”

In his Jan. 25 State of the Union Address, President Barack Obama said, “Starting this year, no American will be forbidden from serving the country they love because of who they love.”

At the press conference Cartwright said that they learned from the experience of other military organizations that began allowing gays and lesbians to serve, faster integration was better.

Jeffrey said he has seen little opposition among enlisted personnel. But, he said, one person in his unit did not re-enlist because of the DADT repeal. Others, though, simply didn’t care, Jeffrey said.

Sean said that he felt the least amount of pressure from DADT while in Iraq.

“It wasn’t an issue because you deploy with people you’ve known for a long time,” he said. “It’s more like family.”

Before the repeal is implemented, Cartwright said, most troops will have to complete a training session.

Jeffrey said his understanding was that the training would be a sort of sensitivity class. While attitudes couldn’t be changed during a short session, Jeffrey said he expects the sessions to enumerate forms of inappropriate speech.

Service members are written up for using racial epithets, for example, and Jeffrey said he assumes the same would happen after the repeal is in effect.

But while attitudes might not change, respect between service members could be expected and required.

The vote on the repeal was delayed more than six months in the Senate while the military studied a variety of related issues, including spousal benefits. Studies delayed implementation again after the repeal was signed.

But Stanley announced that no partner benefits would be offered, citing the federal Defense of Marriage Act, which prevents the federal government from recognizing same-sex couples.

Sean, who has a partner, wants to re-enlist despite the lack of benefits and recognition of his partner.

“They’ll come eventually,” he said.

Among military personnel, the most vocal opposition to repeal of DADT was among the chaplain corps. Cartwright said no changes in rules would apply to chaplains.

Jeffrey said that he believed most military chaplains would be professional enough to refer someone that they couldn’t help to someone else. He said it was unthinkable, however, for a chaplain to turn someone away because of that person’s race or religion, and he believes a chaplain who couldn’t be professional with gay and lesbian service members might not belong in the military.

“They should be required to serve everybody,” Jeffrey said.

In an odd twist of the regulations, the decision to not change any rules for the chaplains might require them to do just that.

As bad as DADT has been for some, several retired military personnel said the previous policy was worse.

“I was paranoid about a dishonorable discharge,” said Jim from Phoenix, a gay veteran who was stationed at Fort Bragg. He was honorably discharged in Jan. 1990, three years before DADT was adopted.

While serving, he said he had one member of his unit that was quite flamboyant.

“Everybody liked the guy,” he said. “It’s more of a problem with politicians and with the higher ups.”

But those who weren’t liked were referred for dishonorable discharge for lying on their service applications.

Bill Royal, another veteran, said, “Most people on active duty don’t care.”

He said he believes the military brass disliked the change because it was one less way they could control those under them.

But even Jeffrey, who said he has had little problem with people around him knowing his sexual orientation, said the repeal would be a big relief.

“The threat of losing my job will be gone,” he said. “If somebody asks, I can say I’m gay. I can be myself. I don’t have to worry about keeping things secret. Integrity is a core value and I don’t like having to lie.”

This article appeared in the Dallas Voice print edition Feb. 4, 2011.

—  John Wright

SLDN: ‘The job is not done’

Aubrey Sarvis

This open letter addressed to servicemembers, the LGBT community and allies just came across from Aubrey Sarvis, an Army veteran who serves as executive director of the Servicemembers Legal Defense Network:

Dear Friend,

With the President signing legislation into law that provides a pathway to repeal, the SLDN family and greater LGBT community, along with our allies, should be proud of the role each person played in making history. But the job is not done.

Troops remain at risk under the law. Our service member hotline has not silenced. Since the President signed legislation, 135 service members and veterans have contacted our legal team for help. “Don’t Ask, Don’t Tell” will remain the law until certification and the 60-day implementation period have been completed.

While a measure of dignity has been restored to thousands of service members on active duty, and to over a million gay and lesbian veterans who served in silence – the uncertainty and fear in the ranks remains. Our mission and our services will continue: securing the freedom for all qualified to serve in the U.S. military with equality of treatment and opportunity.

We all know there is vital work unfinished.

—  John Wright

Gay active-duty Marine from North Texas: ‘I think it’s still a little too risky’ to come out

A gay active-duty Marine from North Texas said this week’s injunction ordering the military to stop enforcing “don’t ask don’t tell” was “a good start.”

But the Marine, whose name is being withheld to protect him from being outed under the policy, says he won’t be satisfied until the 17-year-old ban on open service is fully and finally repealed.

In a message to Instant Tea on Saturday, the Marine said although his commanders have reportedly been notified of the injunction, there hasn’t been any announcement at his level.

“I haven’t came out to anyone new yet,” said the Marine, who is stationed overseas. “I think it’s still a little too risky.”

U.S. District Judge Virginia Phillips issued the injunction on Tuesday, Oct. 12. Two days later, the Obama administration asked Phillips to stay the injunction pending its appeal of her September ruling declaring the policy unconstitutional. But the judge has yet to rule on the administration’s request.

“I’m really disappointed in the president,” the gay Marine said. “I think he needs to make good on his campaign promises and repeal this law.”

To read our previous story on the Marine, go here.

—  John Wright

Gay Marine from N. Texas talks about life, having a relationship while on active duty

DADT makes life stressful and risky for closeted servicemember

John Wright  |  Online Editor wright@dallasvoice.com

Kevin is from a small town northeast of Dallas. He says he loves Big D and plans to move here eventually.

Right now, though, Kevin is on active duty with the Marines, stationed overseas and deployed to a classified location.

He joined the Marines a few years ago, before he had accepted the fact that he was gay.

Kevin is a member of OutServe, formerly Citizens for Repeal, which was launched last month and bills itself as the first-ever organization for actively serving lesbian, gay and bisexual troops.

The group began in October 2009 as a Facebook page and has grown to 450 members.

“We are active duty and veteran gay, lesbian, and bisexual soldiers, sailors, Marines, airmen and members of the Coast Guard who are currently serving and who have served — some in silence, some with the open support of our comrades — in defense of our nation,” the group said in a statement announcing its launch. “We include service men and women who graduated at the top of our classes at the service academies and enlisted at recruitment centers around the country. Some of our members have lost their lives in service to their country.”

Kevin, whose real name is being withheld to protect him from being outed under “don’t ask don’t tell,” talked with Dallas Voice via personal e-mail.

………………………..

DV: Are you single or do you have a partner at home?

KEVIN: I am in a committed relationship with my fiancé who is also active duty.

DV: How did you manage to develop a relationship while both on active duty under DADT?

KEVIN: We met online, we met up at Starbucks and really just hit it off from the beginning. We started hanging out on the weekends, then after work off base.

The more time we spent together, the more we realized that we couldn’t be apart. It is really risky to be in a homosexual relationship and be in the military. But once you have found that special someone you realize what really matters in life. There is a great risk, and we both realize that, but the love that we have for each other outweighs that risk.

We are stationed at the same place. While I am deployed we try and keep in contact as much as possible. While talking on the phone, we have to speak in code to make sure that no one finds out. We never know who is listening. We mainly connect through personal e-mail.

DV: How long have you been out as gay in your private life? Did you know you were gay when you enlisted?

KEVIN: I came out of the closet to myself, my family and friends about two or three years ago. I knew that I was different at the time that I joined the military, but I wasn’t ready to accept that yet. I didn’t want to be different. I wanted so much to live a normal life, to not have people judge me, to not take the chances of my family disowning me — which by the way didn’t happen, my family is completely supportive and are my biggest fans.

DV: What is it like to have to hide who you are on a daily basis? Do you frequently worry about being outed?

KEVIN: It is extremely stressful knowing that if the wrong person finds out about me, my career is over. I love being in the military. I love serving my country. I take great pride in knowing that by me doing what I am doing, I am helping to ensure that my family is able to continue to live their lives the way that they want to.

There was one time that one of my friends and I were out and her supervisor showed up at the same place. He was a little intoxicated and started to make inappropriate sexual remarks to her.  She felt extremely uncomfortable and let someone know. What she did was the right thing, but because this individual knew that I was gay, I wasn’t allowed to help my friend by telling the proper chain of command what I knew, for fear that he would tell on me — which he eventually did end up doing. But there was nothing that could be done because he didn’t have proof. To make sure that the wrong people don’t find out about my private life it has to stay just that.

Me and my fiancé aren’t allowed to go to lunch together during the duty day for fear of being caught. We don’t e-mail each other on our work computers, because we never know who is reading them. We can’t call each other’s office; we don’t go to special functions of each other’s that normal families would go, such as promotion ceremonies.

DV: How did you get involved with OutServe and what is your role with the organization? What do you hope to accomplish with the group?

KEVIN: I met [OutServe co-director] J.D. Smith through mutual friends, and got involved in Outserve through him. I guess my role wouldn’t be any more important than anyone else’s. We all have the same goal, to end DADT.

We want the public to know that we demand equal rights. Some people seem to think that if DADT is repealed then there will be some mass coming out party, where we run around in skirts and have sex at the office. But what these people don’t understand is that the Uniform Code Of Military Justice will still be in effect. We will be held to the same standards of professionalism as anyone else.

We are in the military in the first place for one reason: to do our job, accomplish the mission. That’s what will still be done once DADT is repealed. We at Outserve are working to make sure that the thoughts and views of actual military members currently serving under DADT have a voice in the decision making process.

DV: Have you taken or seen the survey that was sent to the troops as part of the Pentagon study? What are your thoughts on it?

KEVIN: I have seen it. I wasn’t one of the ones chosen to take the survey, but I did find it online. I was completely outraged. First of all, I don’t understand why we need the survey to make sure that every man and woman in the United States is treated equally. Second, I feel that the survey was completely biased.

DV: What are your thoughts on what’s happening with the DADT repeal process overall?

KEVIN: I think that the process is taking way too long; the policy is unconstitutional and should be stopped now.
All we are trying to do is serve our country and live our lives without fear of losing everything that we have worked for. The only crime that is being committed is falling in love and not being ashamed of admitting it.

I feel President Obama made a lot of promises that sounded great while he was running for president. I completely applaud him for taking on issues that others were scared to take on. I do, however, wish that he would make good on those campaign promises and do the right thing. Put a stop to DADT.

I am unsure if the policy is going to be repealed at this point. All I can do is hope for the best, and promise not to give up the fight until every man and woman in the United States has equal rights.

DV: So you think Obama should issue an executive order?

KEVIN: I definitely think that President Obama should issue an executive order ending DADT, at least at a very minimum to stop discharges and investigations until the policy is repealed.

DV: If it is not repealed, will you re-enlist?

KEVIN: I will not continue to live a lie. I can’t take that. I don’t believe in lying and hate the fact that I have to. So if DADT is not repealed, then I will not be re-enlisting. It’s not worth the stress that it puts on my relationship and my conscience.

DV: What would you say to senators who are undecided about whether to vote for DADT repeal?

KEVIN: I have made contact with my senators and congressman. I got the same reply from all. I was told they all are planning on voting against repeal due to the concerns of military leaders. This answer really frustrates me.

I was under the impression that once a congressman/senator is elected, they are supposed to represent the views of the people who voted them into that office, not the military leaders. I have just about completely lost faith in my congressman and senators.

If I could talk to them I would ask them, “How would you feel if you were completely in love with one person and had to hide it from the world for fear of losing your job? How would you feel if the day you were elected into office, you couldn’t share that moment with your spouse because your relationship was illegal? How would you feel if you had to lie to everyone you came into contact with on the daily basis?

“This policy is affecting people’s lives. Please do the right thing and vote to repeal.”

And I would want them to know that at night when they lay down to go to sleep next to the person that they love, that I am not able to do that because I am currently deployed fighting for that right which, legally, I am not afforded. That my partner is in his bed worried sick about me every night, hoping that something doesn’t happen to me. If something did happen he would not be notified.

DV: What can the LGBT community in your hometown/state and across the country do to support you? What is your message to them?

KEVIN: I would encourage everyone to get involved, to stand up for what is right. Flood your congressman and senators with calls and letters urging them to vote for repeal. Get educated on the topics. Anything that you can do to help is greatly appreciated by those of us who can’t openly do it.

For more info about OutServe, go to OutServe.org or www.Facebook.com/OutServe.

This article appeared in the Dallas Voice print edition August 6, 2010.

—  Michael Stephens