By Jeff Lake
Published in the Winter 2016 issue of On Watch.
As this article is being written, the military’s policy of “Don’t Ask, Don’t Tell” seems like a relic from the distant past. It has now been over five years since the repeal of the policy, so an update does not appear to be necessary. However, issues remain concerning the participation and inclusion of LGBT people in the military. This article will summarize these issues and explore the possibilities going forward.
In the years following the repeal of DADT there was quite a lot of confusion regarding the status of same-sex partners of military personnel. This issue was resolved somewhat with the Supreme Court decision in June, 2013 striking down the so-called “Defense of Marriage Act.” By September, 2013, the Department of Defense began extending benefits to the partners of same-sex servicemembers. However, questions remained concerning what marriages to recognize as same-sex marriage was limited to a small number of states. Thankfully, these questions were put to rest last summer with the latest Supreme Court decision striking down restrictions on same-sex marriage throughout the nation. It now seems that the confusion over what marriages to recognize is now over and that same-sex partners will now receive the same benefits as all other partners of military personnel.
Up until recently, discrimination based on sexual orientation was not covered by the military’s equal opportunity policy. Instead, complaints had to be made to an inspector general. In June, 2015, Defense Secretary Ash Carter personally appeared at the Pentagon’s Gay, Lesbian, Bisexual and Transgender Pride event. At the event he announced a change of policy stating that complaints about discrimination based on sexual orientation would now be investigated by the Military Equal Opportunity program – the same program that covers all other allegations of discrimination. Carter stated, “Discrimination of any kind has no place in America’s armed forces.” As discussed below, there is still blatant discrimination against transgender members of the armed forces, so Carter’s pronouncement is not exactly a reality at this time.
A lingering issue from the days of “Don’t Ask, Don’t Tell” is the issue of servicemembers who were discharged based on sexual orientation. Many veterans received discharges that were other than “honorable.” Of course, this can be the basis for denial of federal benefits and can hinder employment opportunities. In July, 2013, the “Restore Honor to Service Members Act” was introduced in the House of Representatives. This bill would do a number of things. First, it requires military record corrections boards or discharge review boards to review discharges of anyone who was discharged due to their sexual orientation. The discharge characterization would be changed if there were no “aggravating circumstances” such as misconduct. Second, the bill directs the Secretary of each military branch to review discharges between World War II and September 2011 based on sexual orientation and to take
testimony from those who experienced discrimination and were discharged during this period. Third, it requires the reissuance of specified records and discharge forms so as to not reflect the sexual orientation of the servicemember. Finally, it amends the Uniform Code of Military Justice to remove the offense of sodomy as defined as unnatural carnal copulation with another person of the same or opposite sex.
This bill died in the House. However, the bill was reintroduced on July 15, 2015. It now has 113 co-sponsors. However, since 109 of these are Democrats, it is highly unlikely that this bill will come to a vote in the House. Thus, these needed changes to address the injustices that occurred under DADT will have to wait for a more enlightened Congress.
Changes have been made to remove the criminalization of “sodomy” between consenting adults under the Uniform Code of Military Justice. In December, 2013, Congress made changes to Article 125 of the UCMJ. Prior to the changes, the article was as follows: “Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy.” With the changes, the section now states: “Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex by unlawful force or without the consent of the other person is guilty of forcible sodomy and shall be punished as a court-martial may direct.” The changes make clear that the crime is now about force and non-consent. The reference to sex with an animal has now been moved to section (b) of the Article.
The “Restore Honor to Service Members Act” would remove the words “of the same or opposite sex.” This bill was written before the changes discussed above. It seems as if the intent was to limit the crime of “sodomy” to sex with animals.
There are many issues involving servicemembers living with HIV. Two of the most discriminatory practices of the military concerning HIV are criminal prosecutions and the issuance of “safe sex” orders.
Regarding prosecutions, there is an ongoing practice of charging servicemembers with HIV with aggravated assault under UCMJ Article 128. In their letter to the Pentagon concerning UCMJ reform, the Center for HIV Law and Policy summed up the problems with this practice as follows:
“Bringing attempted murder and aggravated assault charges against servicemembers living with HIV reflects outdated and erroneous beliefs and misconceptions about the routes, risks, and consequences of HIV transmission. The legal standards applied in HIV criminalization cases regarding intent and harm deviate from generally accepted criminal law principles, and reflect long-outdated attitudes about HIV and servicemembers living with HIV. Prosecutions involving allegations of non-disclosure, exposure, or transmission of HIV conflict with public health priorities and violate basic principles of justice. Punishments imposed for non-disclosure of HIV status, exposure or transmission of HIV are grossly out of proportion to the actual harm inflicted, and reinforce the fear and stigma associated with HIV.”
Clearly, the prosecution of servicemembers living with HIV for assault needs to be stopped and the UCMJ should include a clear statement that HIV cannot be used to trigger a charge for assault under Article 128.
The other issue of “safe sex” orders has similar problems. There are cases where military prosecutors have charged servicemembers with violating or disobeying a “safe sex” order under UCMJ Articles 90 or 92. Again, as pointed out by the CHLP, these orders “may at times prohibit conduct that is scientifically and medically safe.” In addition, “safe sex” orders “implicate Constitutional privacy rights affirmed in Lawrence v. Texas 539 U.S. 558, 578 (2003).” The CHLP has urged the DOD “to issue a universal sexual health guidance to all servicemembers regardless of HIV status, consistent with that provided through the Centers for Disease Control and Prevention, addressing the prevention and diagnosis of all sexually transmitted infections and risks, including HIV.”
These and the many other issues concerning servicemembers with HIV show that there is need for serious reform in the military’s approach to sex, sexuality and sexual health.
The Department of Defense currently bans transgender people from military service. There are an estimated 15,000 transgender servicemembers at this time. Perhaps recognizing this problem, the services have recently changed the way they handle questions concerning transgender people. In July, the Pentagon announced that it would begin a review of transgender service. Most importantly, Secretary Carter stated that the review would be conducted under the presumption that the policy would be changed. Following this, both the Army and the Navy issued directives requiring that any transgender discharges to be handled by top-level authorities in charge of personnel matters rather than mid-level officers. The Air Force stated that transgender servicemembers would not be discharged unless there was some kind of problem that interfered with deployment or performance. The transgender policy review is expected to be completed by the end of January, 2016. Any change in policy is expected to be announced in the spring.
Much has changed since I began writing articles on Don’t Ask, Don’t Tell many years ago. The policy has since been repealed. Same-sex partners of servicemembers have now begun to be treated as other partners in terms of military benefits. The ban on transgender service seems to be about to go the way of DADT. The gains in terms of equality for all those who serve in the military have been enormous under the Obama administration. However, as stated elsewhere in this issue of On Watch, no matter how egalitarian the military becomes internally, we must not lose sight of the fact that its current mission is anti-egalitarian and anti-liberation. Now that the military is practically open to all who wish to “serve”, those contemplating such service should seriously consider who they would be serving and what that service would mean to those around the world struggling for independence and self-determination.
Jeff Lake is Chair of the MLTF Steering Committee.