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From Draft NOtices, October—December 2011

Repeal of DADT: How It Helps and How It Doesn’t

—Kathy Gilberd

On September 20, lesbian, gay and bisexual (LGB) service members and veterans, as well as their many supporters, held parties and events around the country to commemorate the official repeal of the military’s policy commonly known as “Don’t Ask, Don’t Tell” (DADT). Just what is the impact of this change?

DADT was the latest in a long line of policies prohibiting homosexual conduct (in reality, prohibiting homosexuals) in the military. DADT was itself a small victory, since it (1) prevented military officials from asking about military members’ sexual orientation without cause and (2) allowed LGB members to serve as long as they were silent about their orientation. The policy reduced the number of anti-gay witch-hunts and mass investigations that had accompanied prior policies, and also reduced the number of involuntary discharges. But DADT allowed members to be discharged for simply stating that they were gay, or using words or even gestures to that effect. In addition, homosexual acts and marriages were grounds for discharge under DADT, and the policy was so broadly defined that even a kiss or hug was often sufficient for discharge. Under this policy more than 13,000 service members were discharged.

The repeal of DADT means that service members may be open about their sexual orientation, coming out to their co-workers or chains of command. They may marry (in states where that is permitted) and may be open about their partners, even bringing them to military events. Romantic and sexual activity should only be penalized, in theory, if the same heterosexual conduct is prohibited. Because of the “Defense of Marriage Act,” however, many spousal benefits will be unavailable to the partners of LGB soldiers; the Pentagon says that some benefits issues are still being worked out. Harassment of LGB soldiers, though not clearly defined, is not to be accepted — offenders will be told that their conduct is not appropriate. The repeal is unclear about disciplinary action to be taken against harassers.

This is nothing short of an historic event. It means a formal end to anti-gay policies that have existed since the Revolutionary War and have resulted in the discharge — usually with public humiliation and an other-than-honorable discharge -- of many thousands of soldiers and sailors. While many of us would prefer not to see more people entering and staying in the military, the forced expulsion of a whole class of people has been a great injustice, and its formal end is a remarkable victory.

LGB service members and supporters have worked for decades to end homophobic military policies. Both military and civilian careers have been destroyed when allegedly gay soldiers were outed or simply suspected of being homosexual. Some of the desire to re-enlist that has framed recent articles on the repeal comes less from pride about service than from a wish to overcome the humiliation and stigma of involuntary gay discharges. Many were abandoned by families, found that bad or gay discharges barred them from jobs and careers, and felt forced into permanent pretence of straightness in order to avoid repeating these experiences.

 Many brave men and women stood up against the policy, despite the increased notoriety this would bring, challenging their discharges in military hearings and in court. Gay veterans’ organizations around the country provided support and helped to create a national network opposing successive policies prohibiting homosexuals in the military. Gay civil rights groups, from Lambda Legal Defense to the Servicemembers Legal Defense Network, provided legal support and helped to make the public aware of this unjust policy. People lobbied their congressional representatives. Soldiers “went public” and spoke to the media. Straight-identified groups joined in political and educational campaigns. While President Obama deserves credit for acknowledging the issue and not backing down, it’s the actions of soldiers and sailors who fought the policy, and the civilians who rallied to their cause, that made this historic repeal possible.

The possibility remains that opponents in Congress, or in a subsequent administration, will find ways to return to DADT or to another discriminatory policy. It is also possible that opponents in the military will find, exaggerate, or create enough cases of LGB sexual misconduct to pressure the administration or Congress to back away from the new policy. And it is possible that informal and theoretically illegal harassment and abuse of suspected LGB service members will force many to remain in the closet in order to protect their dignity and their military careers.

Looking for the details

The congressional plan for repeal required DoD to create regulations for its implementation, but to date this has not been done. Several Republican legislators recently demanded that the repeal be postponed until regulations are in place. While this may be more of a delaying tactic than a principled concern, the lack of policy is, in fact, troubling. In the months before the repeal, a group of military law experts offered DoD language for a new policy that would ensure evenhandedness in disciplining members for heterosexual or homosexual conduct and would make repeated or serious harassment grounds for discharge. So far, it has been entirely ignored.

In the absence of regulations, the details of the repeal remain unclear. There are no formal policies, rules or guidelines on the issue. A plan and set of recommendations issued by a DoD commission in late 2010 is the only guidance available. These give almost no description of permissible vs. prohibited romantic behavior, and repeal training held for all service members this year did not provide clarity. In fact, the training relied heavily, if not entirely, on the 2010 recommendations. Most of the scenarios used in the training had to do with the rights (or lack thereof) of straight soldiers who don't like serving with LGB colleagues and the desire of LGB soldiers to have benefits for their families. In the training material available to the public, only one scenario deals with romantic behavior — two soldiers in civilian clothes kissing at an off-base mall. The training material doesn’t indicate whether this is proper or not; it only informs soldiers that service traditions should be used to judge this behavior. Unfortunately, service traditions are confusing and frequently conflicting.

In the absence of clear policy, what do I do when my female co-worker bumps into me in the mess hall, touches my arm or asks me to go to bed with her? If I share the military’s profound homophobia, I may report her for a sexual act (the touching) or solicitation of an act. If I’m angry about the new policy, I may press for prosecution, make a fuss about the sexual predator in my unit, and support Duncan Hunter’s bill to protect offended straight people. Yet a complaint about such heterosexual conduct would go nowhere — although in theory, the complaint might be valid if the co-worker was my superior and/or his hand strayed from my shoulder and/or he hassled me when I said no.

The lack of clear policy also leaves the door open to harassment. The training materials indicate that abusive language should not be used towards LGB members, but also that heterosexuals (read homophobic heterosexuals) are free to say or preach what they believe. As long as profanity and homophobic epithets are left out, those offended by the new policy can apparently tell LGB members what they think about them and their immortal souls.

The DoD recommendations say that discrimination and harassment based on sexual orientation should be viewed in light of the military’s overall policy on equal opportunity (EO), but a complaint cannot actually be filed under this policy. Instead, traditional complaint methods must be used. Traditional complaint methods mean going up the chain of command, one supervisor at a time, to ask for help. This is well known to be one of the least effective complaint methods in the military. If the chain of command is unhelpful, or if it is the problem complained of, the traditionalist goes directly to his or her commanding officer under an “open door policy.” This is only occasionally effective. Fortunately, another remedy, complaint under Article 138 of the Uniform Code of Military Justice, provides more protection and gets better results. Since such complaints may remain in the records of the officers receiving them, they are sometimes regarded very seriously. Unfortunately, few service members know about this remedy, many of them having been taught in basic training that the UCMJ goes only as high as Article 134.

DoD officials have said that they anticipate little reaction to the repeal, that soldiers and sailors aren’t much bothered about or interested in it. But some observers, like this writer, foresee a backlash in the form of sexual-orientation harassment and false claims of sexual misconduct against LGB soldiers. Despite statements by military leaders that they follow orders, including this policy, military homophobia runs deep. It is an integral part of the culture in this predominantly male institution in which conformity is the norm.

Homophobia and sexism are key elements in military training to ensure discipline and obedience. Homophobic and sexist epithets, chants, images and threats are used heavily to goad men into better performance. Men who cannot perform their duties, who fall out during runs, or who express dislike for the current wars or any military policy are accused of being homosexual, though not in such polite terms. The threat of being labeled gay, then ridiculed and harassed about it, is held over recruits’ heads during training, while images of “manly” men who conquer in combat and sex are used as praise. Recruits are either brave/obedient/strong/masculine/violent men, or wimps/faggots/girlie men/female genitalia. This training mechanism is too ingrained for the military to change, as one can see from its continuation after countless regulations and training sessions meant to end sexist behavior and sexual harassment.

It is instructive here to examine the military’s much-touted equal opportunity policies for people of color and women. In both cases, policies were enacted to allow people to serve by eliminating formal discrimination in military duties. In both cases, the most overt forms of discrimination were reduced, and life became somewhat better for many people of color and women. But we can learn from how these policies have failed. Military racism has not been eliminated — it has become more subtle, at least when witnesses are around. Racial epithets are not used in public, but in private. Sailors who find nooses in their bunks or on their desks won’t hear the offender bragging about it in public. And racist language and discrimination are rampant when decisions are being made about who has access to elite and highly desirable opportunities.

As the number of women in the military increased and many traditionally male specialties were opened to women, sexual harassment increased. While some commands will not tolerate overt sexism, others permit it even in command functions. (The recent case of the executive officer who taped sexist and homophobic vignettes and showed them on shipboard to raise morale is not, unfortunately, an isolated incident.) While women continue to complain of harassment and sexual assault, it has not reduced the problems, and many women acknowledge that a complaint about harassment is often a career-ending experience.

So what will happen here? If military policy on sexual harassment and misconduct is merely made sexual-orientation neutral, will commands decide to enforce the policy against heterosexual abusers in order to bring the policy to bear “fairly” on LGB members? Or will the policy be employed unevenly, so that any accidental touching of another woman by a lesbian soldier is considered sexual misconduct, while men who grope women continue to get away with it?

And what will happen when homophobic soldiers test the distinction between harassment and the freedom to express their personal views? What speech and actions will be tolerated or tacitly encouraged? Will an anti-harassment policy be drafted and, if so, will it be any more effective than the policy designed to protect women?

While the repeal is a significant and historic victory, the struggle for LGB rights in the military is hardly over. Those of us who oppose homophobia must continue to press the military for even-handed treatment and for prevention of harassment based on sexual orientation. We must be on the alert for formal and informal efforts to roll back or limit the repeal.

The change offers anti-militarist activists new and increased opportunities to work with LGB colleagues and youth. In past years, activists have joined in some impressive efforts to keep military recruiters off campuses that have anti-discriminatory policies. Now, with the repeal in place, LGB activists have more opportunity to discuss other negative aspects of the military in their organizing and to make counter-recruitment a part of their work. Anti-militarist activists can raise the anticipated backlash, and the disparity between the official repeal and unofficial harassment, when talking about conditions of military life. All can point to the depth of the problem: the use of homophobia in training despite the repeal; the fact that it has taken over 200 years to end anti-gay policies; and the fact that problems continue and that remaining in the closet is still seen by many as the safest way to survive in the military.

This article is from Draft NOtices, the newsletter of the Committee Opposed to Militarism and the Draft (http://www.comdsd.org/)

       

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