September 20 marks five years since Congress repealed “Don’t Ask, Don’t Tell” (DADT). Under DADT, openly gay and lesbian people were barred from military service. Those already in the military but found to “demonstrate a propensity or intent to engage in homosexual acts” were expelled. After it was introduced in 1993, over 13,000 service members were discharged under DADT. Roughly 80,000 troops have been discharged on the basis of sexual orientation since World War II alone and perhaps as many as 114,000 altogether. Transgender service members were barred from service until June of 2016. For years, these policies sent a clear message that discrimination against gay, lesbian and transgender Americans was acceptable and served as breeding grounds for a host of other injustices – including retaliation against service members who reported sexual assaults. DADT is still having a devastating impact on thousands of our bravest men and women.
B. Jennings is but one example. He enlisted in the U.S. Navy on September 30, 2003. The sexual harassment that followed was immediate. He reported the problem to his superiors, but they took no action. The harassment continued to escalate in a horrifying manner. After boot camp, B. Jennings was sexually assaulted by another sailor. A few weeks later, it happened again – by a different sailor.
B. Jennings did what few men in the military do after they are sexually assaulted – he reported it. But the fall-out from reporting was even worse than he had feared. Just two weeks after reporting the assaults, B. Jennings received notice that he was being separated from the Navy under DADT. The Navy had decided that the first assault was voluntary and therefore a homosexual act, not a sexual assault. The Navy did find that the second assault was indeed an assault – likely because the second assailant admitted as much.
On March 22, 2006, after two years of unblemished military service, B. Jennings was dismissed from the Navy for allegedly engaging in homosexual conduct – a violation of DADT. He also received a less than Honorable discharge status – a General discharge – precluding him from certain benefits, such as college tuition aid under the G.I. Bill. His assailant in the second assault was also expelled but received an Honorable discharge despite having been found guilty of “indecent assault.”
The repeals of DADT and the ban on transgender service members are cause for celebration. They are more than revocations of blatantly discriminatory policies. DADT’s repeal also marked a significant step forward in the military’s efforts to combat sexual assault, particularly for male victims. For 17 years, DADT provided the military with a powerful weapon to silence and retaliate against male service members who were sexually assaulted. It allowed archaic ideas – that real men cannot be raped – to fester. Since B. Jennings’ separation, the military has made seismic improvements in how it handles sexual assaults. DADT’s repeal was an important precursor for these improvements.
But for B. Jennings and thousands of others, repeal alone does not right the injustices that they suffered. The military does not automatically upgrade the discharges of those unjustly forced out. Rather, each such service member must apply for relief – which takes time and is not guaranteed. With the help of Protect Our Defenders and the Legal Aid Society-Employment Law Center, B. Jennings was able to upgrade his General discharge status to Honorable. He is planning to apply for law school – and now will be eligible to receive financial aid from the military for his education. But thousands of others are foreclosed from such benefits. It is time for the military to right all wrongs stemming from DADT and other anti-LGBT policies by automatically upgrading discharges to Honorable status. A bill pending in Congress, the Restore Honor to Service Members Act (HR 3068), partially addresses the problem by improving the process for upgrading discharges based on sexual orientation, but an upgrade is still not automatic and the bill does not cover those discharged because of sexual assaults or gender identity. The President has the authority to order the Defense Department to change the discharge status of those discharged due to sexual orientation, sexual assaults or gender identity. It is time to right these grave injustices.
Cacilia Kim is Special Counsel at the Legal Aid Society-Employment Law Center, where Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program. They are members of Protect Our Defenders’ network of pro bono attorneys that provide free legal assistance to military service members who are sexually assaulted during their service. B. Jennings also contributed to this article.