Guest Blogger

Service Members Still at Risk under New DADT Instructions

Filed By Guest Blogger | April 09, 2010 10:30 AM | comments

Filed in: Marriage Equality, Politics
Tags: coming out of the closet, Don't Ask Don't Tell, gays in the military, military, new regulations, SLDN

Editors' Note: Guest blogger Aaron Tax serves as Servicemembers Legal Defense Network's Legal Director. Mr. Tax provides legal assistance to those currently serving who are impacted by "Don't Ask, Don't Tell," and related forms of discrimination, including those who are HIV positive and/or transgender. Prior to joining SLDN, he spent Aaron_Tax.jpgthree years working for the Department of the Army in the Office of EEO and Civil Rights.

Despite mainstream media reports that service members can no longer be outed by "third parties," it's important that the 66,000 lesbian, gay, and bisexual service members understand that they can still be fired under DADT - even if outed by so called "third parties."

We recognize that the new DoD Instructions (learn more here and here) further define what "credible information from a reliable source" may mean, but based on SLDN's preliminary analysis, we cannot guarantee that service members are protected.

The updated language does not change the fact that statements, acts, or same-sex marriage, are still grounds for discharge under DADT, including:

  • A service member can still be fired if outed by his or her parents;
  • A service member can still be fired for revealing his or her sexual orientation while making a statement to the police that would prevent or help solve a crime;
  • A service member's middle school teacher can still out the service member 10 years after he came out to her in social studies class;
  • A service member can still be discharged if he reports that someone has threatened to kill him for being gay;
  • A service member can still be fired for hugging someone of the same sex;
  • A service member can still be fired for getting married; and
  • A service member can still be fired for saying she would like to return from Iraq to care for her dying girlfriend.

SLDN can say that under the new Instructions, LGBT service members can now safely talk to psychotherapists and clergy, in their professional capacities; safely talk to a medical professional in furtherance of medical treatment or a public health official in the course of a public health inquiry; and safely seek professional assistance for domestic or physical abuse.

While the psychotherapist, chaplain, and other medical professional protections might not greatly decrease the number of discharges under the law, the 66,000 lesbian, gay, and bisexual service members serving in the US and deployed to war zones around the world can breathe a little more easily... The impact of the rest of the changes has yet to be seen.

But one thing remains the same. At the end of the day, until Congress changes the law, lesbian, gay, and bisexual service members will continue to be fired simply for who they are.

For more information, service members should contact SLDN for legal advice.

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BRAVO to SLDN for issuing this common sense guide. Too much of both gay & mainstream media continue to confuse the expectation of what the announcement would include with what it actually did. And, that, alas, is on top of already widespread ignorance about DADT generally [see: woman servicemember discharged from Air Force in January in South Dakota].

Note, too, that, contrary to expectation, the motivation of the person who outs a servicemember remains fuctionally irrelevant. One isn’t going to “get a pass” simply because it was done with malice.

Real life examples: under the new regs, assuming their accusers were willing to make their statements under oath, Bleu Copas, Margie Witt, Mike Almy, and Victor Fehrenbach would all still be subject to discharge, with only the hope that the general/flag officer [now] authorized to initiate a fact-finding inquiry or separation proceeding would choose to “look the other way.”

There will be a few such instances, of course, just as there have always been since the ban started during WWII.

The phoniest baloney on Gates' combination platter was the suggestion that new hearings under the new regs for those already recommended for discharge might end in a different result. For as Pentagon General Counsel Jeh Johnson said, the bottomline remains:

“If there is compelling evidence that a person has engaged in homosexual conduct, I would not expect that these new regs would make a difference.”

Consistent with their history of incompetence [last summer Gates was telling everyone that Johnson had assured him NO changes were possible] they did a rather poor job of trying to make the changes consistently coherent throughout the new directives, but, drilling down, it’s clear [despite Johnson's disingenuous insistence to the contrary] that “conduct” functionally remains = to simply BEING gay under the new regs, specifically, someone with a forbidden "propensity" to engage in homosexual acts. And the burden to prove one does not have a “propensity” remains on the shoulders of the accused servicemember.

In short: if there's smoke you're still going to be fired.

Agreed. It's good to get this information as widely disseminated as possible so queer soldiers don't start thinking their actually safe.

Still need to find out if trans people can consult with doctors and clergy without being turned in.

Great post and as Michael already posted... A LOT of very valuable "common sense guide". Would love to have this circulated more, so I posted it to my FB, hoping it starts to get passed around.

Enough is more than enough! Obama needs to write an executive order and Congress needs an appeal. Enough said. Get on with it! Two weeks later the conservative news will have forgotten it and moved on.