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Monday, July 15, 2024 | Back issues
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LGBTQ+ veterans’ suit over discharge papers clears first judicial hurdle

More than 35,000 LGBTQ+ veterans were discharged for their sexual orientation between 1980 and 2011. The reason for their discharge remains on their permanent records.

(CN) — A lawsuit filed by LGBTQ+ veterans who were discharged under rules that barred gay Americans from serving in the military cleared its first judicial hurdle Thursday when a federal judge denied a motion filed by the U.S. Department of Defense to dismiss the case.

According to the federal complaint filed last year, 35,081 veterans were discharged or separated from the armed forces between 1980 and 2011 “because of real or perceived homosexuality, homosexual conduct, sexual perversion or any other related reason.” Most of those veterans, including four of the five named plaintiffs, received less-than-honorable discharges — a permanent distinction that is sometimes visible to third parties.

The goal of the putative class action is to have the government remove all references to the LGBTQ+ veterans’ sexual orientation from their discharge papers, and when applicable, upgrade those discharges to ‘honorable.’ There is currently an administrative process for this to be done, but the plaintiffs call it lengthy and burdensome, sometimes requiring them to obtain “statements from their military supervisors (who may have participated in the discrimination) [and] letters of support from colleagues and friends (to whom the applicant must disclose the trauma of their discharge).”

“The government’s discriminatory discharges and resulting discharge paperwork have ripple effects throughout the lives of LGBTQ+ veterans,” the plaintiffs say in their suit. The discharge papers, known as DD-214 forms, “further isolate LGBTQ+ veterans from the veteran community, which is typically an important source of social and emotional support among those with shared lived experiences.”

The veterans say that being identified as gay on their DD-214s amounts to an unconstitutional invasion of privacy and violates the equal protection clause of the Constitution.

“By including this private information on their proof of military service, the government has unnecessarily invaded these veterans’ private lives and infringed their right to keep sexual and relationship information private,” the complaint reads. “For these veterans, proving their military service can therefore have the immediate effect of disclosing the veteran’s sexual orientation (i.e., outing them).”

Military service can substitute for certain forms of training — like that required, say, for working as a security guard or private detective. Veterans are also sometimes eligible for private discounts at stores or restaurants — IHOP offers free meals to servicemembers on Veterans Day, for example. To be eligible for these discounts, veterans must often present proof of service, such as a special symbol on their driver’s license. Veterans who have been less-than-honorably discharged are ineligible for such symbols.

Homosexuality was banned in the U.S. military for much of its existence, going all the way back to the Revolutionary War. In 1993, the Bill Clinton administration implemented a policy, officially known as “Don’t Ask, Don’t Tell” (DADT) — effectively still a ban on open homosexuality in the military, the policy encouraged gay and lesbian servicemembers to remain closeted. Still, around 14,000 troops were discharged under the policy, before it was repealed by President Barack Obama in 2011.

The Department of the Defense filed a motion to dismiss the lawsuit, arguing that the claims in the suit fell outside the six-year statute of limitations window. It pointed out that since DADT was repealed, it had reviewed more than 1,683 applications for records corrections, and had granted more than 1,400 of them. It said that its policy regarding DD-214 forms is not unconstitutional because it was not implemented with “discriminatory intent.”

U.S. Magistrate Judge Joseph Spero disagreed, writing in his 44-page ruling, “Plaintiffs’ equal protection claim is based on defendants’ affirmative decision to leave the discharge paperwork of veterans discharged under DADT and predecessor policies unchanged and place the burden on veterans who were discharged on the basis of sexual orientation to seek a correction of their paperwork.”

“Plaintiffs have included extensive allegations in the [first amended complaint] about the trauma inflicted on them by the approach defendants have chosen to take to handling the sexual orientation information (and sometimes associated dishonorable discharge information) reflected on their discharge paperwork,” Spero added.

Spero also concluded that the plaintiffs’ claims are not time-barred because the violation to their constitutional rights are ongoing.

In a written statement, the plaintiff’s legal team at the nonprofits Impact Fund and Legal Aid at Work, and law firm King & Spalding, praised the ruling.

“This ruling allows us to move forward in rectifying the discriminatory effects of the Department of Defense’s policies, ensuring that LGBTQ+ veterans receive the honor they rightfully deserve, having served our country with dignity and integrity,” reads the statement.

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Categories / Civil Rights, Government, National

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