Military Service Members' Legal Rights
The Repeal and Legacy of Don’t Ask, Don’t Tell
Enacted in 1993, the “Don’t Ask, Don’t Tell” policy was a compromise reached after President Clinton was unable to keep his promise to completely lift an existing military ban on gay, lesbian, and bisexual individuals serving in the armed forces. Instead he signed a statute, regulations and policy memoranda that directed military personnel: “don’t ask, don’t tell, don’t pursue, and don’t harass.”
The policy allowed lesbian, gay, and bisexual service members to serve, but only if they kept their sexual orientation completely secret. They couldn’t talk about their sexual orientation or have sexual activity, and in exchange commanding officers couldn’t question them about their orientation. At one point prior to repeal, the Servicemembers’ Legal Defense Fund announced that 3,000 men and women chose not to enlist every year due to the ban.
In 2010, Congress voted to allow a repeal of “Don’t Ask, Don’t Tell,” pending completion of a Pentagon study and certification by the president and others that lifting the ban wouldn’t have adverse effects on military readiness. While review and certification were underway, a federal judge agreed with plaintiffs in a lawsuit that the law violated service members’ First and Fifth Amendment rights. The law was not immediately invalidated, however. “Don’t Ask, Don’t Tell” was repealed by a standalone bill that was officially enacted after the Pentagon devised a plan for implementation. The repeal went into effect in September 2011.
Military Service Members’ Rights Since Repeal
After the repeal, gay, lesbian, and bisexual service members who’d previously been discharged due to “Don’t Ask, Don’t Tell” had the opportunity to reenlist. Unsurprisingly, a study of the effects of the repeal on military readiness found that it had no negative effects: it had not triggered mass resignations or loss in morale, and it also hadn’t caused a spike in anti-gay violence.
After the repeal but prior to the Supreme Court’s 2013 ruling in United States v. Windsor, gay, lesbian, and bisexual service members still did not enjoy the same benefits afforded to heterosexual service members. This was primarily due to the Defense of Marriage Act (DOMA), which prevented same-sex couples from accessing federal benefits given to married opposite sex couples.
In Windsor, the Supreme Court struck down as unconstitutional the section of DOMA that required the federal government to withhold benefits from service members in same-sex marriages. After that ruling, veterans’ spousal protections became available to same-sex spouses. The Department of Defense announced it would offer spousal and family benefits to those in same-sex marriages on the same terms as it did to those in opposite sex marriages. Service members in same-sex marriages now have the right to receive corresponding military health insurance coverage, a housing allowance, military ID cards and survivor benefits.
Issues Affecting Transgender Military Service Members’ Rights
Although strides have been made to advance the rights of gay, lesbian, and bisexual military service members, there was a decades-long ban on transgender service members serving openly starting in the 1960s. In 2016, the Obama administration announced that transgender individuals would be allowed to serve openly, with new recruits being allowed to enlist in 2018. The Trump administration temporarily reversed course, but the Biden administration announced in 2021 that transgender service members would be allowed to serve openly in their self-identified gender.
LGBTQ+ Legal Resource Center Contents