Repeal Watch: What’s Next?

While the era of “Don’t Ask, Don’t Tell” (DADT) has ended, LGBT service members may still find themselves at the center of policy debates as various groups continue to fight for full equality. The Magazine’s Repeal Watch section has previously highlighted organizations such as the Palm Center and Knight’s Out, and as a continuing feature, OutServe Magazine is touching base with key names on both sides of the DADT debate to see how its demise has affected groups’ legislative advocacy and educational missions. (*Editor’s note: The anti-repeal organizations contacted refused interviews for this article.) In future issues, this section will continue to feature those organizations such as Freedom to Marry and USNA Out that have had key roles in the movement for LGB equality.

As the interviews for this post-repeal issue commenced, it became clear that while gays and lesbians can serve openly within the military, they have not yet escaped the limelight. LGB service members will remain central to two key issues to the greater fight for LGBT equality: the quest to seek marriage equality, and nondiscrimination based on sexual orientation.

What follows are the results of interviews with various organizations regarding how their mission and focus were affected by the end of DADT. No organization is packing up their shop and claiming mission complete. Rather, they all seem to be sticking to their stated vision, and leveraging their diverse strengths to further LGBT issues.


“The core of our programs will remain legal programs,” said Aubrey Sarvis, SLDN executive director who is following the repeal’s implementation.

Sarvis said he doesn’t expect issues, but wants his watchdog organization to provide oversight to the Department of Defense (DoD) on the process.

Yet with gays now being able to serve openly, Sarvis said the focus of SLDN’s legal advocacy and cases may change. Within the legislation that ended DADT, Congress removed the clause regarding nondiscrimination from the original draft. “We will continue to advocate that the President issue an executive order prohibiting discrimination based on sexual orientation or gender identity,” he said.

According to SLDN, their first priority is to ensure protection from discrimination under the new law, protection which effectively doesn’t exist. Service members who feel they have been victims of discrimination based on their orientation only have two choices: file a complaint with the inspector general, or report the incident to their commander.

SLDN wants those in uniform to have access to independent reporting chains through the equal opportunity (EO) office, just as their civilian counterparts do. This would require the updating of EO processes and procedures to include LGB personnel.

Some gays and lesbians balk at this idea for fear of being designated as a protected class of people within the organization. One justification for the repeal of DADT was, in fact, a desire for fair and equal treatment — no better, no worse. Unfortunately, DoD training for the repeal of DADT specifically indicated that sexual orientation was not covered under the existing EO umbrella, thus limiting the recourse for LGB service members who experience discrimination.

Secondly, SLDN will be an active advocate for parity of benefits between gay and straight troops. Sarvis cited the need to both repeal the Defense of Marriage Act (DOMA), as well as make changes to Title 10 U.S. Code to update the language defining the word spouse, as many DoD benefits are based on recognition of dependents.

“That definition needs to be changed as it didn’t envision a spouse of the same gender, requiring Congressional action.”

Provisions in the Defense of Marriage Act and other laws prohibit DoD from extending certain benefits, such as housing and transportation allowances, to same-sex partners, said Pentagon spokesman George Little.

“But a same-sex partner can be designated a beneficiary, for example, for life insurance. The department continues to examine benefits to determine any that may be changed to allow the service member the discretion to designate persons of their choosing as beneficiaries,” said Little.

However, in a letter to Secretary of Defense Leon Panetta in August, SLDN proposed 10 modifications Sarvis says DOMA wouldn’t prohibit but would be allowed if the department edited its regulations. Their list includes providing access for same-sex partners to the following:

-Military family housing
-Commissaries and exchanges
-Morale, welfare, and recreation resources
-Family programs such as marriage and family counseling
-Legal aid such as the writing of wills for same sex spouses
-Issuance of military ID cards
-Joint duty assignments
-Exemption from hostile fire zones for dual military families
-Command-sponsored dependent status and space-available travel access for overseas assignments
-Spousal privilege in courts martial, preventing same-sex partners from having to testify against each other.

These issues are governed by policy, not statute, and the Pentagon has the authority to change policy, thus affording married gay couples the same rights as heterosexual couples.

In the interim, SLDN sees their core legal service focusing more on correcting records. They will assist those discharged under DADT and under prior laws to correct their discharge paperwork. On the legal front, they are also involved in lawsuits for people seeking reinstatement or the opportunity to rejoin in a different capacity.

Lastly, and what is viewed as longer-reaching goal, Sarvis said SLDN will advocate for transgender military service, making service based on qualification, not gender identity.

Servicemembers United (SU)

Alex Nicholson, Servicemembers United founder, is focused where it has been most effective—defense personnel policies and issues impacting the LGBT military community. He stressed that though SU supports the repeal of DOMA, SU’s efforts are more localized.

“The multi-issue LGBT organizations with much bigger budgets are better suited to lead [the DOMA] issue, although Servicemembers United will certainly be supportive in any way it can,” he said.

Some of the more attainable items Nicholson cited were increasing the range of service member-designated benefits, and securing DoD support for gay military partners and families such as those listed in the SLDN letter to DoD.

Nicholson also said his group will continue working to end carry-over practices from DADT such as recoupment of benefits in DADT discharge cases, as well as fighting what he called thinly-veiled, work-around discharges. Such discharges are the result of situations a nondiscrimination policy could address, discharges for non-LGB related infractions that are less enforced in the general military population.

Log Cabin Republicans (LCR)

The biggest effect the demise of DADT had on the leadership of the Log Cabin Republicans was the wake-up call that while service members can no longer be fired due to their sexual orientation, many of their police officer, firemen and school teacher members who are not protected under a national employment nondiscrimination act can be, according to R. Clarke Cooper, LCR executive director.

“Law enforcement officers, for example, in many jurisdictions don’t have protection,” Cooper said. “When DADT repeal passed, the Log Cabin Republicans were pinged by their membership saying it ain’t over. We can get fired tomorrow. It’s un-American, unfair.”

Working an LGBT agenda with Republicans can be tenuous; however, this issue has an economic aspect at a time when jobs top the political discourse. “There are members of Congress who say nobody should be denied earning an income,” he said. The first attempt at legislation on this issue came in 2007, but failed.

As for such a policy for the military, Cooper, who is also an Army Reserve officer, has a more pragmatic opinion regarding the immediate need of a nondiscrimination policy than SLDN, saying those running military equal opportunity programs should presume the definition of nondiscrimination already includes gays. (*Editor’s note: DoD Tier 1-3 repeal training clearly stated that sexual orientation was not covered under the umbrella of Equal Opportunity, thus DoD would need to adjust their position on EO prior to service members presuming to be protected from discrimination based on current EO policy.)

“Does it need to be memorialized? Yes, but it’s not as hot an issue to tackle as others,” he said, describing instead LCR’s active education campaign to end DOMA in 2012.

LCR is partnering with Freedom to Marry and even some who helped author DOMA to lobby its repeal. They are actively targeting fellow conservatives to create allies in an educational campaign, and using the military as a prime example of how DOMA is detrimental to the nation.

“DOMA will eventually be killed through efforts in the DoD as it isn’t sustainable from a personnel standpoint,” he said. “There will be a stratified system for delivery of benefits. DoD is going to be the biggest change agent for DOMA.”

From Cooper’s experience in his own unit, he has heard questions about travel orders and visas upon changing stations, as well as questions on how to provide benefits to legitimate dependents. One example he gave is the legally married lesbian couple who seeks child care on base, but with a child who is not the natural born dependent of the military member. “Such a situation shouldn’t be a problem, but it will be,” he said.


OutServe’s overall educational agenda has changed little with DADT’s downfall. “OutServe will continue it’s primary focus to ensure successful implementation of repeal, and that everyone is able to do their jobs successfully, no matter their orientation,” said Jonathan Hopkins, OutServe spokesperson. “As we move forward, we will help identify any problems that develop post-repeal and assist in rectifying them in an orderly way. This is one way we will continue to help improve our military.”

OutServe is organized as a 501(c)3, not a lobbying organization. In that light, Hopkins said the group can still educate on the impact DOMA has on LGBT troops. “A family is a family. Military families of all types serve the nation just the same. Through information and education, our nation can make smart and informed decisions, based upon equality, which is ultimately better for our country.”

Human Rights Campaign

As a large, multi-issue organization, HRC, like the Log Cabin Republicans, is identifying examples from the military that will affect their work. In terms of broader policy, HRC believes bumps in the road come with any large scale political change such as the end of DADT.

“There will be elements of DADT repeal that we need to be watchful of,” said HRC spokesman Michael Cole-Schwartz. “We need to ensure people are not discriminated against, claims of harassment are pursued appropriately, and service members have access to channels in order to deal with such problems in the same way their straight colleagues do, as well.”

Like other organizations, HRC thinks an explicit nondiscrimination policy covering sexual orientation would clarify and ensure the military’s desire for nondiscrimination of any kind.

While the group has no wholesale change in their outlook with this victory, HRC thinks there is still work to be done.

“Think about it in light of the hate crimes law passed a couple years ago,” Cole-Schwartz said. “While a huge victory, there are still things we as an organization do, such as working closely with the Department of Justice and publishing a guide for how states work with the law. While a different issue, it is illustrative of how there is still a lot of work to do on implementation and ensuring that the spirit of the law is followed. I think it’ll be the same as DADT repeal. While the statute is wiped off the books, there is plenty for advocates to do with regard to the day-to-day lives of the people we represent.”

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