LGBTQ+ Veterans' Legal Issues
The Department of Veterans Affairs (VA) serves all eligible service members, veterans and families. It has implemented several new nondiscrimination policies and programs for LGBTQ+ veterans and employees since the repeal of “Don’t Ask Don’t Tell” and the 2015 Supreme Court ruling in Obergefell v. Hodges legalizing same-sex marriage.
Access to Benefits
The VA now recognizes all same-sex marriages of veterans nationwide. All veterans in same-sex marriages who believe they are entitled to benefits can apply for benefits. Any veterans with claims to benefits based on same-sex marriage that were previously denied are now able to reapply for benefits. The VA also has a policy to provide healthcare to transgender and intersex veterans. This includes using a preferred name, hormone therapy and documentation of gender in the computerized reporting system.
Since the repeal of “Don’t Ask, Don’t Tell,” veterans’ benefits for which lesbian, gay and bisexual service members may designate beneficiaries of their choosing irrespective of sexual orientation include: Veterans’ Group Life Insurance, Service Members Group Life Insurance, Montgomery GI Bill, and presentation of the flag of the United States. The Department of Defense also provides other benefits for service members for which lesbian, gay and bisexual service members can designate a beneficiary irrespective of sexual orientation.
Even before transgender individuals were allowed to serve openly and honestly in the military, they were entitled to veterans’ benefits. The Department of Veterans Affairs has a policy of providing medically necessary care to eligible intersex and transgender veterans. This includes hormonal therapy, preoperative evaluation and any medically necessary post-operative or long term care after sex reassignment surgery.
Honorable Discharge Process and Appeals Related to “Don’t Ask, Don’t Tell”
More than 100,000 gay members of the United States military were discharged with dishonorable or less-than-honorable discharges due to sexual orientation from World War II onward. These veterans were unable to claim full veterans’ benefits, and they had difficulty getting tuition under the GI Bill (or didn’t get it) and finding jobs. Even under the Don’t Ask Don’t Tell policy, some lesbian and gay service members that received honorable discharges were noted as ineligible to reenlist, which adversely affected their potential with prospective employers.
Soldiers discharged for homosexual conduct under “Don’t Ask Don’t Tell” have been able to apply to the Army Discharge Review Board for a discharge review since the repeal. If they were discharged for homosexual conduct over 15 years before the repeal, they have been able to apply to the Army Board for Correction of Military Records (ABCMR) for a discharge review. Both the Army Discharge Review Board and the Army Board for Correction of Military Records will consider changes to the reason for discharge, the characterization of service based on the service member’s entire military service, and the re-entry eligibility code.
Following the repeal of Don't Ask, Don't Tell in 2011, the Obama administration adopted a policy granting an honorable discharge to veterans discharged for homosexuality unless there were aggravating factors like misconduct. The vast majority of requests submitted since this policy was adopted have resulted in changes to honorable discharge.
A Restore Honor to Service Members Act has been sporadically introduced in Congress to ask the Department of Defense to come up with clear steps that veterans discharged for their sexual orientation due to “Don’t Ask, Don’t Tell” could follow. The goal of the bill is to make it easier for veterans to have their status changed to honorably discharged in those instances where sexual orientation was the only reason for a less-than-honorable discharge. Under the bill, all rights and benefits that would have been received with an honorable discharge would be restored.
