Don’t Ask, Don’t Tell is Done, Discrimination Isn’t

I won’t pretend to be completely objective about the repeal of Don’t Ask, Don’t Tell. I’ve been in the military for four years, which gives me regular access to gay and homophobic soldiers.

So in the midst of fresh DADT briefs prepping us all for the repeal, as rights were reviewed, lines were drawn and questions answered, something seemed…off. Then the injustice came clear: The repeal of Don’t Ask, Don’t Tell does not come with a policy of nondiscrimination, unlike those policies incorporating women and ethnic minorities. Lesbian, gay and bisexual service members and their family members will still experience limited rights, benefits and assistance due to the federal Defense of Marriage Act and Title 10 of the U.S. Code.

The government and military repealed a nearly defunct policy; sexual orientation is no longer a basis for investigation into service members’ personal lives, nor is it a basis for separation from the military. It’s a big, but underwhelming deal, said David McKean, legal director for Servicemembers Legal Defense Network.

“For those people who are serving, (the repeal of) Don’t Ask, Don’t Tell is an incredible step forward,” he said. “It’s an incredible stride toward full military equality and toward LGBT equality in this country, but it’s not everything. It’s not even everything in the military.

“There are going to be a whole host of benefits that DOMA and Title 10 prevent from being conferred to people who would otherwise be qualified spouses just on the basis of sexual orientation.”

It’s bullet five in Title 10 USC Section 101: “‘spouse’ means husband or wife, as the case may be.” It’s Defense of Marriage Act Section 7: “‘spouse’ refers only to a person of the opposite sex who is a husband or wife.”

It—the definition of spouse under DOMA and Title 10—means same-sex spouses of active duty service members:

1. Will not be allowed a legal say in directing the disposition of remains if their spouse is killed on active duty.

2. Will be notified after “qualifying” next of kin in the event of death or hospitalization of their spouse.

3. Will be severely limited in their ability to travel with their spouse when that spouse is ordered to relocate, or to travel to their spouse in the event of a hospitalizing injury.

4. Will not receive the basic housing allowance provided to the spouses of service members on active duty.

5. Will not receive TriCare, the military’s healthcare provided to “qualified” dependents including spouses, or other healthcare services such as grief counseling.

6. Will not be allowed access to their spouse’s retirement benefits after the death of their spouse.

7. Will not have access to the commissary, post/base exchange and other similar on-post or base services.

8. Will not receive any of the above benefits for their children unless those children are legal dependents of the active-duty service member.

Same-sex marriage is recognized in six states and in Washington, D.C. Roughly 40 other states have constitutional provisions or laws that restrict marriage to one man and one woman. With a new legislature on its way in, Rep. Jared Polis said he hopes not just civil unions, but same-sex marriage will soon become a reality in Colorado.

“Colorado had a very close vote on civil unions last legislative session,” said Rep. Jared Polis. “It came within one vote of passing.”

Federally, following DADT’s repeal, he said he’d like to see the Respect for Marriage Act replace DOMA. RFMA would recognize and allow marriages between same-sex couples, he said.

“(Under RFMA) married couples would have the full rights and support the military provides to opposite-sex couples,” Polis said. “…With the military, there will be a new education opportunity, that hasn’t happened yet. There’ll be very sympathetic cases that, once Americans see, (they’ll ask:) How can you not give grief counseling to the spouse of somebody who lost their life? I think that will kind of wake people up to the need to recognize those unions.”

It’s a battle of moralities surrounding marriage that fuels the fight outside fo the military.

Inside of the military, however, protests are largely sexual, not moral: “Do I have to/I don’t want to share a room or shower with gay service members” comes up during most briefings, discussions and occasionally during room assignments.

So much of military service—physical tests, room assignments, clothing and hair regulations, even friendships—revolves around gender and sex that service members new and old find the open acknowledgement of homosexuality inappropriate. Do you house a lesbian with men? Would she be safe? Shouldn’t she be? Which is more important, anatomy or sexuality? Where do you put a bisexual?

The military has attempted to dodge such questions by making no additional provisions to care for homosexual service members following harassment or discrimination. To paraphrase a brief I received: The military decided sexuality is no longer its business, period.

If open homosexual or bisexual service begets discrimination or harassment, service members’ avenues of reproach are limited to the chain of command or inspector general, McKean said. Unlike religious and ethnic minorities, women and blacks, LGB service members may not seek justice through the military’s equal opportunity office.

McKean said SLDN and the LGBT community now look to the president to issue an executive order establishing a policy of non-discrimination through the Military Equal Opportunity office.

Although the chain of command may take legal action against ill-behaved service members, if a chain of command were the source of the problem, the inspector general’s role to act on its findings is not clear, especially in cases involving discrimination or harassment of LGB service members, McKean said.

“For gay and lesbian service members to have the full range of options with respect to addressing discrimination and harassment when it arises, they really need access to MEO,” he said.

But discrimination isn’t likely to come from service members, McKean, Polis and service members said. They’ve been briefed, know how to behave and most just don’t care. This isn’t an integration, McKean said, LGB service members are integrated, they’ve been serving. Polis compared it to atheists serving in a largely Christian military—they’re not persecuted, they’re just there, part of the masses. The organization is still the same (Christian, white, male, heterosexual or otherwise) and service members in varying degrees of homo- or heterosexuality, feminity, color and ethnicity might only have issued a collective sigh of relief that this battle, albeit not the fight, is over.

Today the government gave us this:

“…The military will not, from Sept. 20 forward, view (openly gay service) as so detrimental to unit cohesion, good order and discipline that the mere fact that people in the unit know it requires that service member to be discharged for the good of the unit,” McKean said.

But as the country “defends” marriage, it attacks so much more.