A Post-Memorial Day Call for Equality

Yesterday was Memorial Day in the United States, a day that typically means barbecues and parades and the honoring of those who serve the military while remembering those who have served and lost their lives.

Unless those who serve are gay. Because gays, lesbians and bisexuals are prohibited from serving openly, theare rendered invisible, and face losing their jobs if they are open about their sexualities. Because of the policy known as "Don't Ask, Don't Tell" (DADT) more than 12,000 service members have been dismissed because of their sexual orientation since 1993 according to Lamda Legal.

Gays and lesbians who do serve, in addition to being forced to live dishonestly, are discriminated against in other ways because of the federal government's refusal to recognize same-sex relationships as equivalent to heterosexual relationships. For example, if you die while serving your partner can't receive any of the benefits that spouses receive. Basic compensation is different, too. For example married service members get a housing allowance and their dependents get relocation benefits and other benefits. That means that if you have a spouse you get more compensation than if you don't. This is unfair to singles and to heterosexuals who are in long term relationships that are not marriages. But it is particularly unfair to LGBT families for whom marriage is not an option. And in a perverse twist, a service member from Massachusetts in a same-sex marriage would not be able to access those marriage-linked benefits because to expose oneself as in a same sex relationship would mean losing one's job.

Partnered or not, you must agree to essentially be made invisible as a requirement of your service even though another perversity regarding DADT is that the language (10 U.S.C. § 654) doesn't exactly prohibit homosexual sex. It prohibits homosexual sex among people who think of themselves as homosexual. If the sex is a 'departure from the member's usual and customary behavior,' then even if discovered it is not grounds for dismissal.

In other words, the military makes a distinction between sex-as-sex and sex-as-identity. Which is interesting given that the rationale for the policy is grounded in an assumptions about troop morale. Apparently troops are more likely to fear or distrust people who explicitly claim a sexual orientation of gay or lesbian or bisexual than they are to fear or distrust those who claim a straight identity but have occasional same-sex encounters anyway.

DADT has been the wrong "compromise" on sexual orientation and military service for 15 years. It needs to go.

The most recent source for any optimism at all came with a very double-edged 9th Circuit Court decision last week (Witt v. US Air Force PDF here). The New York Times covered the story here and the documents in the case can be found on the Lamda Legal site here. The case centers around the dismissal of Major Margaret Witt because of a long-term relationship she had with a civilian woman off base. Witt is suing the Air Force. A lower court threw out her case and the the double edge in the appeal decision is this: While the 9th Circuit panel that heard the appeal sent it back to the lower court to establish a factual record on the question of due process it did not take a stand on the DADT policy itself. In fact, it finds that her civil rights were not violated by the DADT policy, though her rights to due process might have been violated by the way it was applied.

I have my fingers crossed for Margaret Witt, of course. But even if she wins on a due process violation, the policy itself needs to be repealed. What it will take to make that happen is not clear to me. There is no evidence to support the rationale that openly gay members disrupt the morale of military units. The military is racially and ethnically integrated and largely integrated by gender. According to the Servicemembers Legal Defence Network at least 26 other nations allow gays and lesbians to serve openly, and membership in the European Union requires the dropping of prohibitions against gays in the military. There is no evidence to support the claim that openly gay men and women disrupt the moral of their units. The policy -- created by the Congress, not by the military -- clearly disrupts rather than stabilizes the military by dismissing service members with essential skills that have taken years and much money to develop. More than 58 Arabic linguists have been dismissed, for example. (One of them, Stephen Benjamin, wrote about his own story in the New York Times last June).

I don't tend to take campaign promises seriously, but Barack Obama told HRC that he would work to pass legislation making nondiscrimination the rule in the military, he would work to achieve a full repeal of DADT, and he would work to make sure that anti-harassment policies were created to ease the transition. Will the issue remain an important one on his radar if he is elected? Bill Clinton held similar views himself, and it was Clinton who made the DADT compromise.

In order to get the recent Employment Nondiscrimination Act past the House, not only did it have to sacrifice the transgendered, but it also clearly exempted the military. There is much work to be done chipping away at homophobia and heterosexism in Congress as well as in the military. 

Technorati Tags: Don't Ask Don't Tell, military, sexual orientation

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Elizabeth