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DADT Discharges May End, But Discrimination Might Not

February 03, 2011 9:25 am ET by Kerry Eleveld

Last week, headlines suggested that "Don't Ask, Don't Tell" repeal implementation was on the move even though Pentagon officials gave no target date for when it would be complete.

But here's what the reports missed: President Barack Obama and Defense Department officials are preparing to provide lesbian and gay service members the space to serve openly without risking expulsion while simultaneously affording them absolutely no legally enforceable anti-discrimination protections once they are visible.

Sure, they may not be at risk for being discharged after implementation, but they will have no means of sustainable legal recourse if they are discriminated against in any other way (or if the political environment shifts) on the basis of their sexual orientation.

Eliminating discharges is only part of the battle in terms of protecting gay service members, and candidate Barack Obama was extremely clear on this point.

"The eradication of this policy will require more than just eliminating one statute. It will require the implementation of anti-harassment policies and protocols for dealing with abusive or discriminatory behavior as we transition our armed forces away from a policy of discrimination," he wrote in a statement on his candidate website in 2007.

Wow. That's a far cry from the president who twice declined to answer whether he would issue a nondiscrimination mandate via executive order in an interview last December. After dodging the question once and being pressed on the matter again, he said only, "I am going to look exactly at what the recommendations are, and we will be making decisions over the next series of weeks about what is necessary to implement not just the letter but the spirit of this repeal."

The spirit of repeal originally did include a nondiscrimination mandate. In fact, when Sen. Joe Lieberman introduced the bill in the Senate he explained that the provision would make the change "more permanent legislatively" so that future administrations couldn't revert to something akin to "Don't Ask, Don't Tell" by executive action.

But the nondiscrimination provision was bartered away in an effort to get more votes — a move clearly designed to give the Pentagon more leeway in terms of the how it would enact any policies or regulations regarding sexual orientation.

Last Friday's press conference made clear that the military has no intention of acknowledging a need for those explicit protections.

Several reporters asked how service members who were discriminated against specifically because they were gay would seek redress and the answer from Clifford Stanley, Undersecretary of Defense for Personnel and Readiness, and Marine Gen. James Cartwright, vice chairman of the Joint Chiefs, was the same: the current policies are sufficient.

"There's no special policy needed to address the things that we're talking about here with regard to taking care of people and treating them with dignity," said Stanley. "That's so fundamentally basic. So the remedies you have are the remedies that already exist. There's no need to create new remedies for that."

Another reporter later noted that gays aren't officially a "protected class" as defined by the military's equal opportunity (MEO) program, which includes race, color, national origin, religion, and sex.

"If it's not a protected class, can you actually assert discrimination?" asked the reporter. 

Cartwright responded by noting this was "a legal area" where they "probably ought to get a lawyer to look at this."

In fact, Stanley's January 28, 2011 memo to the secretaries of the military departments expressly states that sexual orientation will be excluded from the MEO: "Sexual orientation will not be considered along with race, color, religion, sex and national origin as a class under the Military Equal Opportunity (MEO) program and therefore will not be dealt with through the MEO complaint process."

President Obama could make all this go away with an executive order that categorically prohibits discrimination against gay service members. When I asked a White House spokesperson why the president would not issue that mandate, he said the DOD had developed "clear policy guidance" on the matter.

"The policy guidance makes clear that 'all Service members, regardless of sexual orientation, are entitled to an environment free from personal, social, or institutional barriers that prevent Service members from rising to the highest level of responsibility possible'," said Shin Inouye, referring to Stanley's memo. "The guidance states that harassment or abuse based on sexual orientation is unacceptable, and that any deviation from this standard will be dealt with through command or inspector general channels."

But Stanley's original assertion — that there's no need "to create new remedies" — paints the true picture of what's actually happening and is particularly disturbing. Apparently, a group of people that has been the target of systemic discrimination for the past 18 years has nothing to fear. If those MEO designations aren't necessary in order to protect gays, why are they necessary for any of the other groups?

But that's not the only place where gay troops will be exceptional — when it comes to partner benefits, they will also be excluded.

"No policy changes dealing with benefits," Stanley stated glibly, invoking the Defense of Marriage Act as an obstruction to recognizing legally wed same-sex partners.

According to Stanley's memo, gay service members will be able to name their same-sex partner as a beneficiary to things like life insurance and survivor benefits. Just FYI, they have always been able to do this but some declined to do so for fear of giving away their sexuality and, thus, being discharged.

But the benefits that help a service member be a well-adjusted part of their unit with the confidence of knowing their spouse is well cared for — all of those critical support mechanisms will continue to be choked off to lesbian and gay service members because the military will be making "no policy changes" regarding benefits.

During the briefing, one reporter astutely drew an analogy between DOD and the State Department, where Secretary of State Hillary Clinton used her authority to extend a number of new benefits to same-sex partners of foreign service officers, such as overseas housing allowances, passport assistance, and emergency evacuation assistance. Those benefits had not previously been made available though they certainly weren't prohibited by the Defense of Marriage Act.

But Stanley invoked DOMA several times and added that he didn't want to get into "hypotheticals" when discussing benefits. That's because DOMA doesn't actually prohibit a good number of those benefits — like allowing same-sex partners to use the commissary (discount grocery stores for the military) or relocation assistance programs.

The point is, the military can elect to make the lives of gay troops and their families much better. But instead of scrubbing its policies to find ways of making those improvements, the Defense Department is presently refusing to budge.

"We're not saying everything's ironclad," Stanley said, "but right now as we move forward toward implementation and ultimately repeal, we don't anticipate that change at this time."

Last week, I wrote a piece in which I posited, "Once lesbians and gays become visible in the military, will our government continue pretending their families aren't?"

We got our answer.