“The presence in the Armed Forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards or morale, good order and discipline, and unit cohesion that are the essence of military capability.” – Military Law

Military law states that “homosexual acts” are incompatible with service in the armed forces, and with the implementation of the policy known as “Don’t Ask, Don’t Tell” in 1993, the United States Congress passed a law that could be described as a gentlemen’s agreement allowing gays and lesbians to serve in the military as long as they kept their sexuality a secret. However, the policy itself is far more complicated – and to fully understand it you have to look at all four aspects of the policy, including “Don’t Ask, Don’t Tell” and the lesser-known prongs, “Don’t Pursue, Don’t Harass”.

Here’s how the four policy points break down:

• Don’t Ask — Commanders or appointed inquiry officials are not allowed to ask, and service members are not required to reveal, their sexual orientation.

• Don’t Tell — A basis for discharge does exist if a service member makes a statement that he or she is gay, lesbian, bisexual or makes a statement that indicates that he or she has the propensity to engage in a homosexual act.

• Don’t Pursue — This mainly means what it says, but the Department of Defense has laid out more than a dozen specific investigative limits that comprise the directives of this segment of the policy, making it the most complicated and least understood component of the policy.

• Don’t Harass — Armed Forces policy states that it does not tolerate harassment or violence against any service member, for any reason, and this does apply to anti-gay harassment cases.

While at the time of the implementation of “Don’t Ask, Don’t Tell” in 1993, many Americans viewed the policy as a permission slip for gays and lesbians to serve in the Armed Forces, it also for the first time defined a penalty for being openly gay in the service; more specifically, service members who came out either because they were forced to, or were outed by some other means, would be discharged.

The “Don’t, Ask Don’t Tell” policy is the result of an effort by President Clinton to end the ban on gays and lesbians in the military. During his presidential campaign in 1992, and in response to the brutal murder of Seaman Allen Shindler at the hands of his own shipmates, Clinton proposed an end to the ban by issuing an executive order that would supercede the Department of Defense’s ban on gays in the military. Congress, however, intervened by passing “Don’t Ask, Don’t Tell” as a bill that Clinton eventually signed into law.

When the law went into effect in 1993 it was known as “Don’t Ask, Don’t Tell, Don’t Pursue”, with the “Don’t Pursue” provision added to signify the new limits to investigations and the intent to respect service members’ privacy. As a result of the policy, the armed forces were no longer allowed to ask applying service members about their sexual orientation. There was also a reduction in criminal prosecutions for homosexual conduct and a decrease in “witch-hunts” were seen. The actions, on behalf of Congress, prevented Clinton and future commanders in chief from repealing the order and lifting the ban on gays in the military.

The law was a compromise – intended to be a temporary one – which would allow gays and lesbians to legally serve in the armed forces, but upheld the military’s assertion that openly gay men and lesbians serving in the military would be a detriment to unit cohesion.

Despite its inherent flaws, the significance of the 1993 law was that for the first time in history Congress and military leaders acknowledged that gays, lesbians and bisexuals served honorably in the armed forces. It also officially stated that sexual orientation was not a bar to military service; and finally Congress and military leaders agreed to end intrusive investigations into the private lives of the men and women serving in the armed forces.

Bridget Wilson, a local attorney who has represented gays and lesbians in the military for more than 30 years, notes an immediate negative change that came with the new policy: “One of the differences in the [old] regulation was that you could have someone who never said they were gay and wasn’t known to be gay, but [the military] could come in with all sorts of BS evidence that you were gay, or that you seemed to be gay, and get you: ‘He is effeminate’ or ‘She is masculine’. And so you’re doing these discharge boards where you are taking these big bad old dykes, put on all of this makeup and stuff to try to fem them out.”

In 1999 a new challenge to the effectiveness of “Don’t Ask, Don’t Tell” arose with the murder of PFC Barry Winchell by fellow soldiers at Fort Campbell, Kentucky.

“That murder began a number of movements within the military to more proactively protect lesbian and gay service members,” says Steve Ralls, director of communications for SLDN. “The two most significant outcomes of that murder was, one, the addition of the ‘Don’t Harass’ prong to the policy. … The second outcome was the adoption by the Pentagon at the conclusion of the Clinton administration of an anti-harassment action plan – and that was the first time ever that the services had ever acknowledged that they had a problem with anti-gay harassment and had actually set forth 13 very concrete steps towards curbing harassment.”

Despite the fact that the Pentagon directed the 13-point action plan to be implemented, to this date no action has been taken by the Department of Defense to put them into place. Additionally, intrusive questioning still occurs, and recent reports indicate that harassment continues in epidemic proportions.

In the 11 years since the introduction of the “Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass” policy, the asking, pursuing and harassing have continued, and servicemembers continue to be discharged for telling.

At of the end of 2003, 9,682 service members have been discharged from the military under the “Don’t Ask, Don’t Tell” policy.

“I was not out when I joined the military,” says Zack, a 26-year-old Marine based in Southern California who spoke to the Gay & Lesbian Times on condition of anonymity. “I didn’t even think about my sexuality until I moved to California. I wanted to tell my mom because I knew she would be accepting but I haven’t told many high school friends because it only takes one to drop a dime to a recruiter and all you need is a rumor in the military to start an investigation,” Zack said. “There are people that I would love to tell. One of my friends I have known since, like, the third day that I was in; I would love to tell her, but just for her own personal beliefs and the fact that she has a loud mouth it worries me. I could trust her, but it worries me if she would mess up and tell other people and their reaction. That’s the worst – I have to condition my responses and behavior with people to compensate for the fact that they are uncomfortable with it.”

While the common perception among Americans is that gay and lesbian servicemembers are free to serve in the military, it has created a precarious situation for servicemembers who must constantly lie about their life outside the work place.

Zack recognizes the flaw in the justification for the ban based on unit cohesion.

“As far as unit cohesion goes, the worst thing for cohesion is secrets, and I think the federal government makes unit cohesion worse by telling people they can’t be honest with their co-workers than [by] me telling someone that I am gay and them having to challenge their own little personal boundaries,” Zack says. “If you have 12 people who spend all of their time together, they’re supposed to trust each other, not only with their life, but with everything else. So if they can tell that there is something that they don’t know, it already puts them on a defensive front, that they can’t be open with you because they can tell that you’re not being open with them.”

Zack adds, “Usually I try not to give too many details on anything. A friend of mine always makes up stories and then he has to remember the stories he makes up and I tell him to just not tell people. If they ask, just say I went out to a bar or had a barbecue with friends. You don’t have to say I had a barbecue with 12 gay Marines in La Jolla. There’s a certain bit of discretion that you can exercise, but it does get old. I should be able to be honest and tell them that I have a great boyfriend.”

Thousands of gays, lesbians and bisexuals are serving in the military today, with their livelihood dictated by the “Don’t Ask, Don’t Tell” policy.

“In some ways, ‘Don’t Ask, Don’t Tell’ is better for gay servicemembers,” said SLDN Executive Director Dixon C. Osborn in an interview with the Gay & Lesbian Times. “Gay people are not being investigated by criminal investigators like they were before. Witch hunts are down.”

However, Osborn adds, “‘Don’t ask, Don’t Tell’ in some respects is worse than the old gay ban. It’s worse because there is increased speculation about who is gay. It is worse because harassment has become more pronounced.”

According to statistics provided by SLDN, more than 80 percent of discharges under “Don’t Ask, Don’t Tell” are “statement cases” – gay and lesbian service members who come out to their commanders. According to SLDN, anti-gay harassment is one of the main reasons why gay and lesbian servicemembers decide to come out to their commanders.

“Most of our clients report that they either hear or experience harassment on a daily basis, including being called dyke or faggot,” SLDN’s Ralls said. “It goes from that to more severe levels of harassment; for example, a recent SLDN client reported that he had a live grenade and death threat taped to his barracks door and found that when he awoke in the morning. So there is an element of harassment in almost every case we handle. Some more than others.”

A study issued by the Center for the Study of Sexual Minorities in the Military at the University of California at Santa Barbara this past May revealed that despite assertions from the Pentagon that the military takes anti-gay harassment as seriously as harassment against women and other minorities, the actual policies and practices tell a different story.

It is in the “Don’t Harass” part of the policy that there is a breakdown, says Sharon Terman, author of the study and a recent graduate of Stanford University Law School.

Terman reported on a class devoted to the study of “Don’t Ask, Don’t Tell” taught at Fort Campbell, Kentucky by an Army sergeant in response to the murder of Private Barry Winchell. Though only a short time had passed since the murder, the sergeant called the class a “fag briefing” and repeatedly referred to gay soldiers during the briefing as “fags”.

In another reported incident that took place during an Army equal opportunity training session in 2003, Terman wrote that an instructor told anti-gay jokes throughout the session and, following the training, the unit commander asked “anyone who is gay to raise their hand if they felt offended by the jokes.”

In a 2003 survey, SLDN reported that most gay troops “indicate they are afraid to report harassment for fear of becoming the target of an anti-gay investigation or of worsening harassment.”

Wilson, who has represented servicemembers who were victims of anti-gay harassment, says that it is a situation that has to be handled very carefully.

“To be really honest, it’s about a 50-50 chance that it will end poorly,” Wilson says. “You have to have someone, if they’re being harassed, who will not fall into the trap of saying they are gay…. The big mistake and the thing we see more often is someone comes in and says, ‘They’re throwing me out because I told them I was gay but I only told them that because I was being harassed.’ There are many commands that will ignore that statement and deal with the harassment, but there are commands that won’t because you gave them a statement.”

Wilson’s number-one piece of advice is this: “If someone was coming to me saying they’re being harassed I would say, ‘Don’t tell them you’re gay. Tell them that you’re being called names, that someone obviously thinks you are and you want them to do something to stop the harassment.’”

The reality is that very few cases of harassment end up being properly reported because servicemembers are afraid that it will draw undue attention to themselves, especially if they are gay or lesbian.

“I have seen people who will let it ride even though they don’t want to,” Zack says. “They’ll try and get relocated, just so they can avoid that person instead of throwing up that flag, just because of other people’s perceptions. If one guy says about another guy ‘He’s calling me a fag’ then that makes him look like … ‘Well why does it bother you so much, it must be true.’”

“It’s not right,” he adds. “If you read any commanding officer’s statement, it says that discrimination is a complete violation of their policy. They will say race and age, ethnicity, but they never say sexual orientation, of course. I am sure they would exercise that if they had to, but they don’t advertise it.”

According to SLDN, part of the reason that anti-gay harassment persists is because the 13-point plan outlined by the Pentagon in 2000 has never been implemented by the Department of Defense. Earlier this year, 23 members of Congress sent a letter to the Pentagon demanding to know why the plan had not been implemented and asked for an update on what actions were being taken to address anti-gay harassment. Dr. David Chu, the undersecretary of personnel for the Department of Defense, responded with the assertion that the plan was not necessary because the pre-existing program that the services had in place is sufficient to address anti-gay harassment. This assertion came on the heels of the Pentagon’s own survey that found an overwhelming number of servicemembers reporting anti-gay harassment, many of whom had experienced verbal or physical assault.

“That response is feckless, there is mountain after mountain of evidence pointing to the exact opposite conclusion,” says Ralls of Chu’s statement. “In fact, there needs to be many more proactive steps taken that commanders must intervene more often. That harassment is not being curbed. Those programs are obviously not working. The reports of harassment to SLDN are skyrocketing, and the Pentagon’s own survey shows that that is true.”

Politics have played a dramatic role in the issue of gays in the military. It was not an action by military leaders that put “Don’t Ask, Don’t Tell” into place; it was an attempt by the Commander in Chief to create a compromise that would eventually lead to gays and lesbians serving openly in the Armed Forces. When Congress usurped the power of President Clinton by making “Don’t Ask, Don’t Tell” a law, it made the policy a part of partisan politics and it remains so today – the issue is addressed in both the Democrat and Republican Party platforms this year.

As attitudes about gays and lesbians have continued to change since the policy went into effect, the Democratic Party has also seen its views on the issue evolve since President Clinton signed “Don’t Ask, Don’t Tell” into law.

“Senator Kerry has been one of the staunchest supporters of lesbian and gay servicemembers in the senate,” says Ralls. “In 1993, when ‘Don’t Ask, Don’t Tell’ was being considered, Senator Kerry did not have to testify; he volunteered to testify before the Armed Services Committee and made a very passionate plea for allowing lesbian and gay servicemembers to serve openly. When ‘Don’t Ask, Don’t Tell’ was proposed he found it unacceptable and he was one of only 12 senators to vote against the ban.”

The official party platform seems to reflect Kerry’s commitment to gays and lesbians in the military, stating, “We are committed to equal treatment of all service members and believe all patriotic Americans should be allowed to serve our country without discrimination, persecution or violence.”

On the other side of the party lines, the Republican’s have maintained language in their party platform stating that “Homosexuality is incompatible with military service.”

“President Bush has said that he is a ‘Don’t Ask, Don’t Tell’ man, and he believes that the current policy works,” Ralls says. “His administration has made no additional remarks above and beyond that and that was during his first days in office.”

“Don’t Ask Don’t Tell” can only be overturned through a constitutional court opinion or through an act of Congress followed by a presidential signature.

“It is a very clear choice on this issue between two candidates who have very differing opinions on this issue and certainly the ban is not going to be removed without a presidential signature,” Ralls says.

Beyond the support of a presidential signature on a law to repeal “Don’t Ask, Don’t Tell” that would allow gays and lesbians to serve openly in the Armed Forces, an actual bill must be passed through Congress. While presidential support could go a long way towards meeting that goal, there currently aren’t enough votes for such a bill in the Republican-controlled House and, further, a bill would have to be brought up in the House Armed Services Committee, which is currently led by local Congressmember Duncan Hunter.

“Representative Hunter is not a friend of this issue,” Osborn said, speaking of the prospects of a bill being brought before the House. “Representative Hunter, back in 1996 in fact, tried to repeal ‘Don’t Ask, Don’t Tell’ and reinstate the portions for ‘asking’ and ‘witch hunts’ that had been taken out back in 1993. He does not look favorably on gays in the military at all. To be able to win this, you need a coalition that can overcome that sort of opposition in the House.”

Outside of legislative action, the other hope that SLDN sees for overturning “Don’t Ask, Don’t Tell” lies in a Supreme Court decision on the issue. Because in the past military courts have been able to site sodomy laws as a basis for criminal activity and grounds for discharge under “Don’t Ask, Don’t Tell”, last year’s Supreme Court Decision in Lawrence v. Texas could bring an end to a legal justification for the ban on gays in the military.

There was hope that a recent military court ruling on a case that involved “consensual sodomy” would force the Armed Forces to recognize the constitutional protection of such actions that the Supreme Court defined in its Lawrence v. Texas decision; however, the Court of Appeals for the Armed Forces found that the appellant’s involvement with a subordinate took his conduct outside of the purview of the decision, but did leave the door open for whether it would declare private consensual sex (or “sodomy” as stated in the case) between servicemembers unconstitutional in future cases.

“SLDN will bring another case, challenging the constitutionality of the policy,” Osborn said, emphasizing the importance of a legal challenge to the ban on gays in the military. “That case is going to be percolating along, regardless of the outcome of the November election, and provides some hope and opportunity to get rid of this ban.”

When the ban on gays and lesbians serving in the military does fall, it does not mean that the closet doors will swing wide open. In fact, it seems that more than likely most members of the armed forces will remain quiet about their sexual orientation.

“I don’t think most people are going to be coming out,” Wilson said. “I think what it will eliminate is the random ability of the disgruntled ex-boyfriend or -girlfriend or a disgruntled subordinate or coworker from using something completely meaningless against you successfully. That’s the difference, then no one can walk up and say ‘You’re gay’.”

Just as when the Armed Forces were integrated to allow African Americans to serve, the process for gay and lesbian servicemembers to become fully integrated will be a slow one.

“Even if they officially wanted to lift the ban, they wouldn’t change people’s opinions right away,” Zack said. “There will still be people who would treat people differently because of their upbringing. It will probably bring up a lot of things, like not getting the promotion you’re vying for, and people will find ways to affect your career just because they don’t like that aspect of you.”

For an organization like SLDN that was founded on defending the right of gays and lesbians to serve in the military, it will be an opportunity for the organization to grow and evolve.

“I think SLDN will always exist,” Ralls said. “Once the ban is lifted that certainly does not mean the issue of anti-gay harassment will evaporate overnight and it does not mean that lesbian and gay personnel will not need our assistance. While SLDN’s role will change and evolve after the ban is lifted, there are legal services and policy services that are still going to be very important long after that event happens.”

Osborn adds, “Our mission will morph. One, there still needs to be a group to monitor a policy of non-discrimination. We’ve seen, with the case of integrating African Americans into the ranks that racial harassment continued for decades because there wasn’t appropriate oversight. For women in the ranks, they continue to report in very high numbers the level of sexual harassment that is still going on. Then, there will be a lot of clean up work that needs to happen to make sure that it gets implemented properly and that there isn’t a pink or lavender ceiling that prevents the appropriate promotion of servicemembers based on their sexual orientation. There needs to be an association for all gay, lesbian, bisexual and transgender servicemembers to be able to come to and feel protected by. So the organization will change in that direction once we can celebrate the end of ‘Don’t Ask, Don’t Tell’.”