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date: 09 July 2020

LGBT Military Service Policies in the United States

Summary and Keywords

For most of its history, the U.S. military has maintained a policy of exclusion toward lesbian, gay, bisexual, and transgender (LGBT) people serving in uniform. The justifications for these exclusions have included the view that being homosexual or transgender is a psychological disorder, that it undermines military morale and effectiveness, and a fear that LGBT people would be vulnerable to foreign espionage. Explicit policies banning consensual homosexual sex—and excluding from service those who engage in it—date to the period between World Wars I and II, but de facto efforts at exclusion have existed since the early days of the republic.

Regulations governing homosexuals in the military came under pressure in the 1970s and 1980s as societal views toward lesbian, gay, and bisexual (LGB) people changed, and those LGB service members discharged under the policy increasingly challenged their treatment in court. (Public pressure to change regulations governing transgender people in the military arose mostly in the 2000s, though litigation efforts date to the 1970s.) In addition to general shifts in public and legal opinion, the debate over LGB people serving in the U.S. military was affected by the experience of foreign militaries that allow LGB people to serve. United States law began to loosen formal restrictions on LBG people serving in uniform with the passage of “Don’t Ask, Don’t Tell” (DADT) in 1994, but it still required LGB people to serve in secret. Changing public perceptions of LGB people and problems implementing the ban galvanized support for eliminating such restrictions. In 2010, President Obama signed legislation repealing DADT and removing all restrictions on LGB people serving in the military. However, transgender people do not enjoy the same rights. The Trump administration has revised Obama-era rules on transgender service members to enable greater exclusion. The issue is being contested in the courts and appears ripe for further political and legal dispute.

Keywords: lesbian, gay, bisexual, transgender, LGBT, military service, “Don’t Ask, Don't Tell", LGBT politics, DADT, Department of Defense, DoD, armed forces

Introduction

Lesbian, gay, bisexual, and transgender (LGBT) issues in the American military have long been a political and cultural flashpoint.1 From the early days of the country, the U.S. government has barred accession of LGBT people to the military and separated those found serving in its ranks. There are two general ways the military can involuntarily separate a service member from the military: court martial and administrative action. Court martial proceedings are the military equivalent to a civilian criminal court and separations effected this way generally result in dishonorable discharges. Administrative separations are also for rule-violating behavior but at a lower level and result in honorable, general, or other than honorable discharges.

The practice of excluding LGBT people has remained remarkably consistent, even as the rationale for doing so has varied from medical diagnoses, to the need to enforce “good conduct,” to military effectiveness and cohesion, to the threat of espionage. Congress moved to allow military service by openly gay, lesbian, and bisexual individuals in 2010, but the exclusion of many transgender individuals remains. This article addresses the history of the American military’s policies toward these sexual minorities. It details the development of exclusion policies, the controversies surrounding them, and a timeline of important court cases. Finally, the article examines current policy, including the Trump administration’s attempt to exclude certain transgender people from military service.

History

Prior to World War I

Prior to World War I, U.S. military policy and law did not address homosexual behavior or identity. The Articles of War of 1916 were the first to directly address sodomy, which was treated as a crime only when combined with an intent to commit assault (Rostker et al., 1993). Prior to these changes, sodomy was not permitted in the armed forces but was punished through the civilian court system rather than within the military. Woodruff (1995a) has noted that this practice of allowing civilian courts to punish homosexual behavior was one that the United States inherited from English Common Law. Although sodomy was not a specific crime under military law before 1916, the army did court martial soldiers who engaged in consensual sodomy for disrupting order and discipline (Borch, 2010). The military services were also empowered to administratively separate service members for homosexual behavior, without criminal court martial proceedings.

Indeed, military policy toward homosexuality was generally vague in the pre-World War I period. Instead of specifically identifying homosexual conduct as prohibited or undesirable, the military interpreted policies requiring good character and proper conduct as grounds to exclude LGB service members. Perhaps for this reason, restrictions on LGB people serving in the armed forces were applied unevenly. Additionally, when restrictions were enforced, it was on the basis of behavior, not sexual orientation per se. Regulations excluding LGB people would not focus on the identity of the individual until World War II. One notable example of such uneven application of the rules is the case of Baron von Steuben, whom General George Washington brought to the United States in 1778 to assist with the professionalization of the U.S. Army. Von Steuben was gay and fleeing prosecution in Europe for his sexual behavior, but he developed a drill book for the Continental Army and was well-received by both Washington and the soldiers he trained. However, shortly after Von Steuben began this work, the Continental Army forced Lieutenant Gotthold Frederick Enslin out of the service for having sex with another male soldier and perjuring himself when confronted with the sodomy charge. He was the first person forced out of the service for homosexual behavior (Shilts, 1993).

Interwar Years

In the interwar period, the military sharpened its policies to specify what it deemed desirable, and sodomy was established as an independent criminal offense with the 1920 update to the Articles of War. Borch (2010) noted that the army began treating homosexuality as an illness and LGB people were often separated from military service on medical grounds. Men who appeared too feminine or who engaged in homosexual sex and other forms of “sexual psychopathy” were identified as unfit for service (Army Regulation 40–105, 1921, cited in Rostker et al., 1993, p. 4). In addition to providing greater specificity about such undesirable characteristics, the army worked to achieve uniform implementation of such policies. Those known to have engaged in homosexual behavior were likely to be separated from military service, but the form of separation varied with the circumstances. Generally, consensual sodomy led to administrative discharges, while service members who committed sodomy in connection with assault or other criminal offenses were court-martialed (Rostker et al., 1993).

World War II and Post-War Period

A shift occurred during World War II away from disqualifying service members based on their conduct toward disqualification based on their identity. The language in military policy documents shifted from “sodomist” (with its focus on what a person does) to “homosexual” (with its focus on one’s preferences or identity) (see Rostker et al., 1993, pp. 5–6; Bérubé, 1991, pp. 14–15). Identifying homosexuals as a group of people coincided with a development among psychiatrists to view homosexuals as a category of mentally ill persons (Marcosson, 1995, p. 63). This policy allowed the military to exclude recruits—or separate existing service members from military service—solely on the military’s judgment that the person was a homosexual. No evidence of prohibited conduct was required. This distinction between conduct and identity would re-emerge in the 1980s and 1990s as LGB service members challenged the legal rationale of the military’s exclusion policies.

Despite the clarification of military policy, enforcement during World War II was inconsistent (Rostker et al., 1993). Departmental policy gave commanders latitude in handling cases within their chain of command.2 The options available to commanders ranged from medical treatment intended to “reclaim” a service member to administrative discharge or court martial, depending on the circumstances (Woodruff, 1995a, p. 129). War Department Circular No. 3 was issued in 1944 and codified the responsibility of commanders to either cure or remove homosexuals from the military. Similar guidance was published as Circular No. 85 in 1946 (Borch, 2010). These department-wide policies were complemented by service-level policies that generally followed a similar approach. Commanders had the latitude to identify which service members were useful in spite of their homosexuality (Evans, 2002). The overall approach was to treat homosexuality as a mental disorder that could be cured. Indeed, the decision to prevent LGB people from joining the military (and separate them from the military if they were already serving) was seen as a progressive alternative to criminal punishment for sodomy (Wicker et al., 1992).

The post-World War II period saw a number of changes to military policy that clarified and strengthened the exclusion of LGB people from military service. Although the army briefly changed its policy in 1946 to enable more homosexuals to receive honorable discharges, it reversed course in 1948, making it more likely that a homosexual separated from the army would be given a dishonorable discharge. Department-wide regulations issued in 1949 further sharpened the exclusion by eliminating the option of “reclaiming” homosexuals whom the chain of command viewed as useful to the military mission. This regulation replaced the policy of deferring to a commander’s discretion with a categorical policy that homosexuals should not be permitted to serve. For those who were already serving, it required “prompt separation” from military service (Rostker et al., 1993, p. 6). Similarly, Congress created the Uniform Code of Military Justice (UCMJ) in 1950, which identified consensual sodomy as a criminal offense (Borch, 2010).3 The army revised its exclusion policy in 1950, creating three classes of homosexual offenses, all leading to separation. Depending on the level of offense, punishment ranged from administrative separation, to discharge, to court martial (Woodruff, 1995a). Notably, the new army policy also created a duty for soldiers to report homosexual acts to their commanders (Borch, 2010).

In 1958, the army shifted its rationale for excluding LGB people. Whereas it had previously relied on the medical view that homosexuality was a psychiatric disorder, army officials now added that homosexuals would degrade morale and discipline if allowed to serve (Borch, 2010). The army had not yet given up the psychiatric argument, but the shift to including a non-medical justification is important because it provides a preview of justifications the military would use for its exclusion policy once the medical community stopped treating homosexuality as a disorder. Focusing on the morale and discipline of military units also enabled commanders to speak with unique authority—unlike medical arguments about which the military relied on the views of outside experts. Similarly at the department-wide level, a 1959 DoD Instruction (DoDI 1332.14) cited “sexual perversion” as grounds for determining that a service member was unfit for duty and separating them from service (Rostker et al., 1993, pp. 6–7). This DoDI continues to govern administrative separation for enlisted personnel for a wide range of reasons, and it has been revised repeatedly to update the terms and conditions of separation for LGB service members.4 In most cases in which changes to administrative separation policy are discussed here, they were effected through revisions to DoDI 1332.14 and related documents.5

Military policy remained fairly constant until the 1970s, when the policy basis for exclusion began to shift. Although the military continued to exclude homosexuals from military service, the justification for that policy was coming under pressure. First, the medical community was reconsidering its stance on homosexuality and ultimately revised its guidance in 1973. The updated Diagnostic and Statistical Manual of Mental Disorders II reflected the new expert view that homosexuality is not a mental disorder (Borch, 2010). Second, a series of legal challenges were working their way through the court system and threatened to erode the legal basis for excluding homosexuals from service. Matlovich v. Secretary of the Air Force (1978) and Ben-Shalom v. Marsh (1989) are two examples of high-profile cases that prompted the government to review its policy. Leonard Matlovich was serving in the Air Force when he revealed himself as a homosexual. He was discharged, challenged his separation, and the federal courts ordered the Air Force to reinstate him (Rimmerman, 2008). Similarly, Ben-Shalom was discharged after she admitted to being a homosexual, but the military offered no proof that she had engaged in homosexual acts. She challenged her discharge in court and won in 1980, but lost on appeal in 1989. As such cases threatened to undermine the military’s exclusion policy, DoD lawyers recommended changes that would strengthen the policy’s legal defensibility (Borch, 2010).

The army updated its regulations in 1970, at which point it eliminated the three tiers of homosexual offenses that it had established in 1950. Now, enlisted soldiers who engaged in homosexual acts or even had a “homosexual tendency” would be removed for “unfitness” or “unsuitability.” Homosexual officers would be removed for “professional dereliction” or for posing a risk to national security (Borch, 2010, p. 198). In 1975, DoD-wide policy rolled back these army regulations somewhat. The new DoD guidance explicitly identified homosexual acts as cause for separation from service, rather than identity per se. This change loosened the content of the restriction while putting the policy on stronger legal footing.

In addition to justifications based on unit morale and cohesion, LGB people were excluded from military service for other reasons. During the late 1940s and 1950s, the United States was engaged in an intensifying Cold War struggle with the Soviet Union, and some argued that LGB people would be susceptible to blackmail—and therefore be more likely to give away sensitive information (Moskos, 1994).6 McCarthyism affected LGB people during this period as well, with Senator McCarthy claiming that LGB people would undermine the moral welfare of the country (Rimmerman, 2008). Legal pressure continued to mount, however, as the courts increasingly took up constitutional and procedural challenges to military separation cases. This pressure led to the 1982 policy revision.

The 1982 Policy

Faced with a changed medical consensus and an eroding legal basis for excluding LGB people from military service, the Carter administration called for a review of DoD policy. The result was that the DoD issued yet another revision of DoDI 1332.14, again sharpening the language. For the first time, military policy articulated clearly that the department viewed homosexuality as “incompatible with military service” and it provided specific definitions of prohibited homosexual conduct. Notably, the policy cited both homosexual conduct and the “propensity” to engage in such conduct as threats to the military’s mission. Furthermore, the Department justified its policy on the grounds that it was necessary for “discipline, good order, and morale,” to ensure unit cohesion, and to enable the military to meet its deployment needs. The presence of homosexuals, it argued, “seriously impairs the accomplishment of the military mission” (Wicker et al., 1992, pp. 11–12).

The 1982 policy made the military an even more hostile environment for LGB people, who were to be separated in all but “extenuating circumstances.” However, two provisions provided additional rights to accused service members. First, service members gained the right to appeal a decision made to separate them from the military. This included the right to appeal within the military system, as well as the option to appeal to civilian courts following their separation. Second, they more often received honorable or general discharges because the policy established a new administrative category for separation solely on the basis of sexual orientation. Whereas service members were previously separated under categories of behavior related to misconduct or failure to perform their duties, the 1982 policy specified sexual orientation as a separate cause for separation. The Government Accountability Office (GAO) noted in a 1992 report that the department expelled approximately 1,500 homosexual personnel per year in the decade from 1980 to 1990 (Wicker et al., 1992).

Opening the Military to LGB People

Despite the 1982 revision, pressure continued to build for the military to end its exclusion policy. This pressure was due in part to legal challenges by discharged service members (see Table 1 for a summary of key cases), as well as to changes in public opinion. Advocates of change also argued that the military was often abusive in implementing its own rules. Marcosson (1995, p. 75) has written that investigators employed “falsified statements, coerced confessions, false promises of immunity, and a failure to advise subjects of their rights.” He also described various forms of coercion employed in order to shape the behavior of service members who were suspected of being LGB people. Some service members explained that they were stripped naked and forced to answer questions in front of high-ranking officers. Others reported that they were threatened with public exposure as homosexuals or with the loss of custody of their children. Still others reported that the military falsified confessions or coerced a confession with a promise of immunity that was then withheld (pp. 76–77). Marcosson noted that these tactics affected even those not accused of being LGB people as they were swept up in the pursuit of accused homosexuals. He described a case called the “Parris Island purges” in which a Marine Corps colonel improperly influenced court-martial proceedings for an accused homosexual and retaliated against witnesses called during the course of the trial.7 In that 1988 case, a Marine Corps sergeant was accused of being a lesbian and court-martialed. The commanding officer, Colonel Robert Nunnally, retaliated against character witnesses who testified on behalf of the accused sergeant, and he made clear to others under his command that he expected their statements to be hostile toward LGB people. Sergeant Hilinksi and Sergeant Gurule were both drill instructors serving under Colonel Nunnally when they were called to testify on behalf of the accused. They did so and were removed from their positions by Colonel Nunnally. It is important to note that Colonel Nunnally’s actions were at odds with military law, and the Navy–Marine Corps Court of Military Review called it “unlawful command influence.” Three different court- martial convictions were either overturned or vacated (Marcosson, 1995, pp. 80–81).

Abuses like the ones described here have prompted a debate between supporters and opponents of a military ban on LGB people. Supporters have conceded that such policies regulated private details of a person’s life, but they pointed out that the military regulates many private details of a person’s life. Restrictions on who may serve in the military and what one may do while serving are imposed for the benefit of the service and its interest in ensuring adequate discipline to carry out its missions (Schlueter, 1994). Furthermore, supporters have pointed out that actions like the ones taken by Colonel Nunnally were not because of military policy but contravened it. Indeed, the military court system said as much and sought to remedy the damage done. Young (1995) argued, for example, that abuses may occur in any system without undermining the legitimacy of the regulation. In other words, supporters of the exclusion policy have argued that the problem is the abuse of implementation, not a fundamental flaw in the underlying regulation. Opponents of the ban have countered that such abuses are inevitable in a system that tries to regulate inherently private conduct, such as that associated with a person’s sexuality. Marcosson (1995, p. 92) wrote that “inquisitions into matters that are inherently personal and private inevitably are intrusive, and … accomplished by use of improper and corrupt tactics.” Shilts (1993) and others have similarly written about the ways in which the risk of discovery and separation from the military made service members susceptible to blackmail—whether they were LGB people or not. For example, he described how women could be vulnerable to mere accusations of homosexuality by service members who wished to control them or extract sexual favors (Shilts, 1993). These concerns and a series of legal challenges that slowly worked their way through the federal courts prompted a renewed public discussion of the exclusion policy. Although there is not sufficient room here to detail all relevant court proceedings, Table 1 provides an overview of key cases.

Table 1. Court Cases Leading to Don’t Ask, Don’t Tell

Case

Year

Key Issue

Findings

Berg v. Claytor, 436 F. Supp. 76

1977

Service member Berg was discharged for homosexual acts. Berg claimed that dismissal for homosexuality violates constitutional protections of privacy and freedom of association.

The military did not violate Berg’s constitutional rights but it should specify when it will use its discretion in deciding whether to discharge homosexuals.

Matlovich v. Secretary of the Air Force, 591 F.2d 852

1978

Service member was discharged without justification for why his case did not meet the unusual circumstances provision in military policy.

The Air Force must clarify the conditions under which it grants special considerations and apply them evenly.

Beller v. Middendorf, 632 F.2d 788

1980

Service member was discharged for engaging in homosexual acts.

The policy prohibiting homosexual conduct does not violate the constitution.

Dronenburg v. Zech, 741 F.2d 1388

1984

Service member was discharged after admitting to being a homosexual and admitting to engaging in homosexual acts. He claimed his rights to privacy and equal protection were violated.

The military did not violate Dronenburg’s rights because it employed rational means to pursue legitimate state interests.

Ben-Shalom v. Marsh, 881 F.2d 454

1989

Service member was discharged for stating she was homosexual without proof of homosexual contact.

The army made a reasonable inference about her conduct, based on her orientation, and may discharge her.

Watkins v. United States Army, 875 F.2d 699

1989

Service member was discharged despite having been honest about his homosexuality during 14 years of service.

The army violated the constitutional guarantee of equal protection by discriminating against a homosexual and the regulation did not further a legitimate government interest.

Pruitt v. Cheney, 963 F.2d 1160

1991

Service member was discharged after revealing publicly her homosexuality. She alleged a free speech violation because there was no evidence of homosexual conduct.

The First Amendment does not protect a service member from dismissal when revealing one’s sexual orientation.

Cammermeyer v. Aspin, 850 F. Supp. 910

1994

Service member was discharged after admitting to being a homosexual. She claimed violations of the First, Fourth, Fifth, and Ninth Amendments. The facts of the case predate DADT.

Government policy was based entirely on prejudice, violating Cammermeyer’s equal protection and due process rights.

Meinhold v. U.S. Department of Defense, 34 F.3d 1469

1994

Service member was discharged after admitting to being a homosexual, but the government did not prove homosexual conduct. The facts of the case predate DADT.

Service member’s statement of homosexuality, without clear desire or intent to perform homosexual acts, is insufficient grounds for dismissal.

Steffan v. Perry, 41 F.3d 677

1994

Midshipman at the U.S. Naval Academy was dismissed for admitting that he was homosexual, but the government did not prove homosexual conduct. Steffan claimed an equal protection violation. The facts of the case predate DADT.

Homosexuals are not a “suspect class” provided equal protection. The government reasonably inferred that someone identifying as homosexual would engage in homosexual acts.

In 1991, Bill Clinton committed to changing the policy. While a candidate for president, he was asked by a student at Harvard University whether homosexuals should be allowed to serve in the military. Clinton said yes and that he would work to overturn the ban (Rimmerman, 1996). After taking office, Clinton directed the DoD to draft an Executive Order ending the exclusion of LGB people serving in the military. He also imposed an interim policy that prohibited the military from asking recruits about their sexual orientation. The new policy also froze the separation of military personnel who were in the process of being separated as a result of their orientation. These personnel were temporarily protected from military separation, but they would not be allowed to serve in their existing positions. Instead, they would serve in the inactive reserves until the policy could be updated (Woodruff, 1995a). As the administration considered a formal change in policy, the Defense Department asked RAND (a federally funded research and development center) to assess the options for and likely impacts of a change in policy.

RAND Report

RAND produced an exhaustive report in 1993 that evaluated the department’s historical approach to military service by LGB people, opinions within the military and the general public, as well as frequently raised concerns such as HIV transmission, violence, and an erosion of unit cohesion and effectiveness. In an attempt to find analogous situations from which the United States could learn, RAND researchers visited Canada, France, Germany, Israel, the Netherlands, Norway, and the United Kingdom to assess how those countries had managed the presence of LGB people in their military forces. Notably, these countries’ policies ranged from a complete ban on LGB people in the military (in the United Kingdom) to an active anti-discrimination policy (The Netherlands). The differences in these approaches provided useful variation for the researchers as they estimated the effect that a change in U.S. policy would have. The RAND team also met with domestic police and fire departments that allow LGB people to serve openly in order to understand the impact on these organizations. They noted that the trust and cohesion required for success in the face of dangerous circumstances is similar, though not identical, in these civilian organizations. The experience of these organizations could provide lessons for the U.S. military that comes from a U.S. context. Finally, the researchers evaluated the experience of integrating racial minorities and women into the armed forces. Opponents of integrating racial minorities and women often made similar arguments about the threat to military effectiveness and unit cohesion, so the U.S. experience with these policy changes may be suggestive of the military’s ability to adapt to major personnel change.

The study’s authors concluded that the best approach, given the Clinton administration’s desire to remove barriers to LGB people serving in the military, was to adopt a policy that treated homosexuality as “not germane” to service. All other policies would remain in place and be applied even-handedly. Based on their study of foreign militaries and domestic organizations, the researchers found that most LGB people conceal their sexual orientation, tend to conform to prevailing customs, and faced less hostility than would be expected based on surveys of opinion toward LGB people.8 The researchers also found that organizations that allowed LGB people to serve openly did not suffer problems with recruitment, retention, or effectiveness. Fears of HIV were common, however, and not easily dispelled. In response to the common argument that LGB people would impact unit cohesion, the authors predicted that the actual effects would be small. The history of integrating racial minorities into the U.S. military and the experience of allowing LGB people to serve in foreign militaries and domestic police and fire departments suggest that unit cohesion is largely unaffected by these personnel changes. In all cases, the RAND researchers stressed the importance of leadership in enabling a successful change in policy.

Don’t Ask, Don’t Tell

On July 19, 1993, the Clinton administration announced a new policy that might appear to fulfill Clinton’s campaign promise without provoking excessive opposition. This policy made a number of changes to DoD regulations on LGB service members. It refocused DoD policy on a service member’s conduct (rather than orientation or identity) when determining grounds for dismissal, it continued the prohibition on asking recruits about their sexual orientation, and it enabled openly gay service members to fight their separation from the military by convincing the military that, though homosexual, they would not engage in homosexual conduct. Lastly, the new policy required the equal application of the Uniform Code of Military Justice (Woodruff, 1995a). This last provision was aimed at the practice of treating homosexual and heterosexual sodomy differently under military law. (The UCMJ definition of sodomy includes oral sex, but the prohibition on sodomy was being applied unevenly to homosexual and heterosexual service members.)

The July 19th policy also aimed to limit the circumstances under which a service member could be investigated for homosexuality. For example, it required more than a mere allegation of homosexuality to start investigative proceedings, and it prevented the use of investigations for the sole purpose of determining a service member’s sexual orientation. Importantly, the policy also shifted the express purpose of the DoD’s policy on homosexuality to include protection of homosexual service members. Sexual orientation was to be treated as a private issue and not a cause for dismissal or to refuse new recruits. However, the policy retained the prohibitions on homosexual sexual behavior, homosexual marriage, and public statements about one’s homosexuality (Woodruff, 1995a). The policy was President Clinton’s attempt to create a “don’t ask, don’t tell” policy. Although such a policy would not fulfill his campaign pledge to repeal the ban, it was designed to accommodate the competing demands of LGB advocates and those who opposed a broader repeal, including some within the executive branch. Indeed, the Chairman of the Joint Chiefs of Staff, General Colin Powell, was publicly opposed to lifting the ban (Wilcox and Wolpert in Rimmerman, 1996). This created political pressure for President Clinton to find an option for a limited repeal of the exclusion policy.

President Clinton seems to have misestimated the political climate on Capitol Hill where opposition to the policy was strong, even among Democrats. Indeed, Senator Sam Nunn (D-Georgia), who was the chair of the Senate Armed Services Committee, led an effort to impose an alternative policy through legislation (Woodruff, 1995a). The result was that the National Defense Authorization Act (NDAA) for 1994 included language that rolled back the protections sought in the DoD policy, asserting that no one has a constitutional right to serve in the armed forces. It echoed the concerns raised by exclusion advocates about “morale, good order and discipline, and unit cohesion,” and it concluded that allowing LGB people in the military would “create an unacceptable risk” (National Defense Authorization Act for Fiscal Year 1994, 1994, Sec. 571). The policy that Congress put forward in the NDAA called for separation from military service for homosexual acts unless the service member can show the act was an isolated incident and that his or her “continued presence in the armed forces is consistent with the interests of the armed forces” (National Defense Authorization Act for Fiscal Year 1994, 1994, Sec. 571). Additionally, service members who admit to being homosexual would be allowed to remain only if they demonstrate that they do not and will not engage in homosexual acts. Those who marry or attempt to marry someone of the same sex would be separated from service.

The move by Congress to undercut President Clinton’s proposed policy did three things. First, it set up President Clinton for additional criticism because he neither advocated strongly for the position he promised on the campaign trail nor achieved his proposed compromise position. Instead, he had a position forced on him by Congress. Second, it imposed a policy that was less favorable toward LGB people serving (or wishing to serve) in the military than even Clinton’s compromise position had proposed. Third, it gave this policy the power of law rather than that of a presidential or executive agency directive. Changes, therefore, would require an act of Congress or invalidation by a federal court.

Implementing DADT

In spite of this further restriction on LGB people serving in the military, the practical effect of “Don’t Ask, Don’t Tell” (DADT) on the military’s approach has been disputed. Woodruff (1995a) has argued that the DoD appeared to be implementing its July 19th policy rather than DADT, which superseded it. Indeed, initial DoD implementation explicitly mentioned the July 19th DoD policy announcement (with its emphasis on sexuality as a private, personal issue) rather than the NDAA (which emphasized the incompatibility of homosexuality and military service). In this view, DoD’s actual implementation of DADT improved the situation for LGB people in the military, perhaps more than Congress intended. However, others have suggested that implementation was a worse outcome for LGB people, not only when compared with what was envisioned by the July 19th policy, but even when compared to the previous policy, established in 1981. Rimmerman (1996) argued that military commanders now felt empowered to actively seek out LGB people who were serving in the ranks, and Marcosson (1995, p. 60) noted that the enforcement of DADT “mirrors the prior regime in precisely those areas where reform was expected.” He has provided examples of intrusive questions about service members’ sexual lives and desires as well as efforts to use current or former service members to inform on other service members whom the military suspected of being homosexual (Marcosson, 1995). Such recognition that LGB people serving in the military continued to suffer many of the negative consequences that reform was supposed to address contributed to growing pressure for change to DADT.

Implementation of DADT was also expensive. The GAO studied implementation of DADT and found that more than 13,000 active military personnel were separated from service during the period from fiscal year 1994 to fiscal year 2009. Cost estimates for separating these personnel vary, but the GAO assessed the cost to DoD and the military services to be roughly $383 million (United States Government Accountability Office, 2005, 2011). (This includes two separate GAO estimates: approximately $190 million for 1994–2003 and another for $193 million for 2004–2009.) A University of California Blue Ribbon Commission re-estimated the costs for the first period evaluated by the GAO (1994–2003) and reached an estimate of $319.6 million, a difference of almost $130 million (University of California Blue Ribbon Commission, 2006). That commission did not estimate costs during the second period assessed by the GAO (2004–2009), but if one takes the University of California Blue Ribbon Commission estimate for the period from 1994 to 2003 and the GAO’s estimate for the period from 2004 to 2009, the total estimated cost reaches nearly $513 million. If one uses the GAO’s estimates for both periods, the cost would be closer to $383 million.

Public opinion shifted markedly while DADT was in effect. Brewer has written that the percentage of the public that strongly supported allowing LGB people to serve in the military rose 20 points from 1992 to 2000, while those strongly opposed dropped by 27 points (Brewer, 2003, pp. 1212–1213). This shift continued in the 2000s. Gallup, a polling firm, found that by 2005, 76% of the public believed that a homosexual should be allowed into the armed forces (Gallup, 2018). Despite debate over DADT’s implementation, its cost, and the shifts in public opinion, it remained in effect throughout the George W. Bush administration. LGBT advocates, however, continued to press for repeal. They saw an opening with the election of President Obama in 2008.

The Beginning of Open Service

Mindful of the Clinton administration’s political missteps, the Obama administration moved slowly on DADT and other gay rights concerns. Indeed, the administration was excoriated by gay supporters such as Andrew Sullivan (2009) for the “fierce urgency of whenever” on gay rights issues. However, the Obama administration began changing its approach to LGB service members in February, 2010. The Department of Defense announced that it would continue to comply with DADT, but it elevated the rank of a military officer whose authorization was required to investigate potential LGB people or discharge a homosexual service member. Only a brigadier general or rear admiral (lower half) would be able to take such steps. The military also began rejecting anonymous tips that someone was a homosexual, instead requiring statements under oath.

In 2010, Secretary Robert Gates directed an internal study to assess the likely impacts of repealing DADT (Borch, 2010). The DoD General Counsel at the time, Jeh Johnson, received responsibility for co-chairing this working group on the subject with Army General Carter Ham. Johnson described the experience as a conversation “with the entire U.S. military over a ten-month period” that resulted in the conclusion that repealing DADT would have only a small effect on military readiness, mostly from “limited and isolated disruption to unit cohesion and retention” (quoted in Johnson, 2012, pp. 411–412). However, the window of opportunity to loosen the exclusion policy was rapidly drawing to a close with the Republican takeover of the House of Representatives after the 2010 midterm elections. Democrats, with some Republican support, scrambled to pass a change in spite of intense opposition from Senator John McCain and others.

As the DoD was undertaking its review, the case Log Cabin Republicans v. United States was challenging the constitutionality of DADT in federal court. The lower courts differed on the issue, leading to conflicting court orders and an appeal by the plaintiffs to the United States Supreme Court. Johnson noted that the department wanted to avoid having a change forced on it by the courts. He and Ham submitted their report in November, 2010 and Secretary Gates urged Congress to repeal DADT. Senior military officers split on the question (Johnson, 2012, p. 420), but Congress passed a repeal on December 18, 2010. Four days later, President Obama signed it into law (Stolberg, 2010).

The effects of repealing DADT, though significant, were limited. LGB military members could serve openly but sodomy remained criminalized under the UCMJ. It was not until the passage of the National Defense Authorization Act for Fiscal Year 2014 that consensual sodomy was de-criminalized under military law (2014, Sec. 1707). Repeal also failed to make homosexual couples eligible for the spousal benefits enjoyed by their heterosexual counterparts in the military. This was because the Defense of Marriage Act (DOMA) prohibited the federal government from recognizing same-sex marriages, thereby making same-sex couples ineligible for spousal benefits. That ineligibility remained until the Supreme Court declared DOMA unconstitutional in United States v. Windsor (2013). With DOMA overturned, DoD began making spousal benefits available to same-sex couples (Huetteman, 2013). Furthermore, the repeal of DADT and the expansion of benefits for homosexual service members left intact the restrictions on transgender people serving in the military.

Transgender Service

Restrictions on military service for transgender people have existed in parallel to restrictions on LGB people, but DADT notably did not apply to transgender people. Rather, transgender individuals have generally been prohibited by military medical and psychological restrictions from joining the armed forces. These regulations include DoD directives and service-level policies. An example of this type of policy was Department of Defense Instruction 6130.03, which set forth medical standards and disqualifying conditions for recruits. This directive blocked individuals who had a change of sex from joining the armed forces and banned those with a history of “psychosexual conditions” such as transsexualism or transvestism. Certain transgender-related behaviors (e.g., cross-dressing) have also been punished under Article 134 of the Uniform Code of Military Justice, which allows the military to court martial service members who undermine good order and discipline. Punishments have included forced separation from the armed forces.

Like with LGB people wishing to serve in the armed forces, legal challenges related to service by transgender people helped to clarify military policy and shape the public debate. In 1976, an unnamed plaintiff was denied admission to the army as an officer because she had undergone transition-related surgery. The army used medical regulations related to genital “abnormalities” to reject her application and she sued, alleging a constitutional violation. A U.S. District Court in Minnesota dismissed her claim, arguing that she had no constitutional right to serve in the military, and deferring to the military’s judgment regarding such medical standards (Doe v. Alexander, 1981). The Ninth Circuit Court of Appeals similarly upheld the military’s practice of discharging service members who had undergone transition-related surgery. Jane Leyland was serving in the Air Force Reserves when she was discharged for being “psychologically unstable and physically unfit” as a result of transitioning genders. In 1987, when Leyland’s case was decided, the Air Force prohibited service by people who had undergone transition-related surgery because it anticipated they would require additional medical care and be less able to perform their duties. Leyland argued that she had a right to show that, in her case, there was no reduction in her ability to perform her military duties as a result of her transition-related surgery. The court rejected her argument and upheld the Air Force’s blanket policy (Leyland v. Orr, 1987).

In addition to cases relating to transition-related surgery, federal courts have also found cross-dressing to be a violation of the UCMJ. In U.S. v. Davis (1988), a sailor undergoing treatment from Navy doctors for gender identity disorder was court-martialed for cross-dressing. Although cross-dressing was not explicitly illegal, Davis was separated from the military for disrupting good order. The U.S. v. Guerrero (1991) case was similar to Davis in that Guerrero was separated as a result of his cross-dressing. It differed, however, in that it argued that some cross-dressing behavior, if done sufficiently privately, may not be grounds for separating a service member. The court also seemed to open the door for transgender service members to challenge their dismissal under UCMJ Article 134 if their dismissal was motivated by prejudice rather than genuine concerns about military discipline and order (Kerrigan, 2012).

In the case of DeGroat v. Townsend (2007), the plaintiff had served in the Air Force as a male and was honorably discharged after dressing as a woman in public. Joseph DeGroat subsequently transitioned genders and filed suit as Joanne DeGroat. She alleged that the reasons for her discharge violated her constitutional rights of communication, privacy, and to procedural due process, claims that the U.S. District Court in Ohio rejected. The court also agreed with the Air Force’s conclusion that she was ineligible for reinstatement because she had undergone transition-related surgery.

As social awareness of transgender issues rose, pressure grew for a change to military policy. The Obama administration decided to re-evaluate the military’s approach and, in July 2015, Secretary of Defense Ashton Carter announced the establishment of a working group to study the implications of allowing transgender individuals to serve openly in the military (Carter, 2015). This was part of the administration’s broader efforts to promote equality for the LGBT community (Taylor, Lewis, & Haider-Markel, 2018). Like when the Clinton administration considered the impact of changing the policy on homosexuals, the department asked RAND to conduct a study. In this case, RAND was tasked with assessing the health care needs of the transgender military population, anticipating the implications for military readiness of a change in policy, and learning from the experience of foreign militaries that had made the decision to allow transgender individuals to serve.

RAND Report

The RAND report estimated that between 2,150 and 10,790 transgender individuals were already serving in the military (in either the active or the selected reserve) and predicted that only a small fraction would likely access medical care related to transitioning genders. Using estimates from the private sector, the report’s authors estimated that health care costs associated with treating transgender service members would be between $2.4 million and $8.4 million per year. Further, they estimated that the number of service members likely to seek transition-related surgery would be very small (perhaps only 30 cases in the active component) and that the impact on readiness would be “negligible” (Schaefer et al., 2016, p. 70). The report also evaluated the experience of four foreign militaries that allowed open service for transgender individuals: Australia, Canada, Israel, and the United Kingdom. Policies varied somewhat among these countries, but the authors noted that flexibility in applying the rules and strong leadership were essential to success.

The report noted that the department would need to craft new policies in the following areas if it decided to lift the ban on transgender people serving in the military: accession, retention, and separation. Furthermore, some existing policies that governed housing assignments, restrooms, uniforms, and physical standards would require revision (Schaefer et al., 2016). In evaluating the experience of the four foreign militaries with regard to unit cohesion and readiness, the report found no evidence of reduced operational effectiveness. It did note that data on the subject are limited and non-representative but suggested that, with a range of additional regulations, service by transgender people can be managed effectively (Schaefer et al., 2016).

Carter–Obama Policy

On June 30, 2016, Secretary Carter issued Directive Type Memorandum (DTM) 16-005, which changed the military’s approach to transgender people currently serving in the armed forces or wishing to join (Carter, 2016). This was followed by DoDI 1300.28, which provided additional guidance for how to manage gender transition for service members (Department of Defense, 2016). The new policy stated that gender identity could no longer be used as the sole criterion for separating a service member from military service or rejecting recruits. However, while it opened military service to some transgender people, it kept it closed to others. Specifically, a diagnosis of “gender dysphoria” in a transgender person could still be used to preclude them from service. Here, the terminology in DoD policy unfortunately confused the issue because it conflicts with common usage. Whereas DoDI 1300.28 refers to a transgender service member as one who has a medical diagnosis requiring gender transition, common usage of the term “transgender” refers to people who identify with a gender different from the gender assigned at their birth. These individuals may or may not experience the distress associated with gender dysphoria. It is this second category of people who generally require medical care.9 Subsequent policies sometimes used the more common definition.10

The new DoD policy also treated current service members and recruits somewhat differently. Transgender people who were currently serving would be permitted to continue their careers. They could be discharged for other reasons, but not solely because of their gender identity or a desire to transition genders. They would also have the opportunity to transition to their preferred gender while remaining in the military. Where their ability to serve was affected by their transition, the new policy required that they be subject to the same regulations covering service members who were unable to serve for other reasons. Accessions to the military were handled somewhat differently. Recruits with a history of gender dysphoria would need to demonstrate that they had been clinically stable for 18 months prior to entering service, and recruits in the process of gender transition were deemed ineligible to join the military during their transition. Members of this latter category of recruits were required to first complete their transition and remain stable in that gender (including 18 months of stability on any hormone therapy) before they would be eligible for military service. The same 18-month limitation was imposed on transgender individuals who transitioned genders with or without related genital surgeries. Both currently serving transgender service members and recruits were to be able to serve in their gender of choice, subject to the requirements imposed on people of that gender. The timing for the two groups, however, was somewhat different. Existing service members could serve openly immediately upon approval of DTM 16-005 on June 30, 2016 (Carter, 2016). The policies on recruits, however, would take effect after a year (on July 1, 2017) in order to give the department time to implement the change. Critically, that longer timeline extended past the end of the Obama administration and into the Trump administration.

Mattis–Trump Revision

The election of President Trump initiated a shift in how the military approaches transgender individuals, especially with regard to how it treats those currently serving. After taking office, the administration extended the timeline for compliance with the new accession policies from July 1, 2017 until January 1, 2018 to give the Departments of Defense and Homeland Security more time to study the issue (Trump, 2017, sec. 1).11 On July 26, 2017, President Trump issued a series of controversial tweets stating (Phillip, Gibbons-Neff, & DeBonis, 2017):

After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military. … Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.

On August 25, 2017, President Trump followed up with a memorandum to the Secretaries of Defense and Homeland Security raising concerns that the Obama-era policy failed to adequately consider its potential to “hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources” (Trump, 2017, Section 1[a]). President Trump instructed the departments to extend indefinitely the policy of blocking transgender accessions to the armed forces, halt sex reassignment surgeries for those currently serving (unless the service member could demonstrate a medical need to continue the surgery), and provide the president with a proposed alternative transgender policy. LGBT legal groups immediately challenged the policy change in court and won injunctions blocking the change in policy (Taylor et al., 2018).

In the face of strong legal opposition, the administration attempted to revise course with a more defensible approach. Secretary Mattis convened a panel of experts drawn from the Departments of Defense and Homeland Security to study the issue and concluded in a February 22, 2018 memo to the president that the Obama administration’s policy on transgender service members imposed “substantial risks” that “could undermine readiness, disrupt unit cohesion, and impose an unreasonable burden” that would negatively impact “military effectiveness and lethality.” It is striking that the DoD and RAND reviews reached opposing conclusions and Secretary Mattis explained this by referencing data limitations in the RAND study, differences in the requirements facing U.S. and foreign militaries, and greater-than-anticipated complexity in implementing the Obama-era policy (Mattis, 2018, p. 2). The policy that Secretary Mattis proposed to President Trump thus broke with that of his predecessor, but maintained some commonality. For example, in place of the requirement that recruits be stable for 18 months before joining the military, Secretary Mattis suggested 36 months. Current service members with gender dysphoria would be allowed to continue serving, provided they were deployable, and those receiving treatment for gender dysphoria under the previous policy could continue to do so. The memo did make two major changes, however. The first is that it called for disqualifying transgender people who had made a gender transition (or required one) from joining the military. Second, it would allow transgender people without gender dysphoria to serve in accordance with the gender assigned at birth. This distinction was intended to clarify that people identifying with a gender different from the one assigned at birth would be eligible to serve in the military only if they do not have the “distress and impairment of functioning associated with” this identification (Mattis, 2018, pp. 2–3). President Trump responded to Secretary Mattis’ memorandum by empowering the Departments of Defense and Homeland Security to “implement any appropriate policies concerning military service by transgender individuals” (Trump, 2018, Sec. 2). However, the Trump administration’s shift on transgender people in the military was embroiled in a series of legal challenges that temporarily stalled implementation (Taylor et al., 2018). In January 2019, the Supreme Court lifted injunctions that blocked the Trump administration’s policy. While eliminating the injunctions allowed the policy to be implemented, legal cases challenging the ban on most transgender people in the military continue to proceed in the court system (Liptak, 2019). In addition, public opinion polling finds that the Trump administration’s approach is not fully supported by the American public. Taylor et al. (2018) find that while the public generally feels less warmly toward transgender people than gays and lesbians, they nonetheless support transgender people being protected from job discrimination and being allowed to serve in the military. However, the public tends to be less accepting of the use of public monies in support of transgender-related medical care.

Conclusion

Sexual minorities serving in the armed forces have occupied a precarious position since the founding of the United States. The military has, at times, tacitly accepted their presence when they were needed, but the risk of involuntary separation always loomed for these service members. Although the rationale for excluding sexual minorities has varied over time, the impulse to exclude has been remarkably constant. Only since the end of 2010 have LGB people been able to serve openly. The issue of transgender people serving in the military has confronted legal and policy challenges mainly since the 1980s, and the issue is far from settled. Because transgender-inclusive or -exclusive policies are being enacted solely through executive branch actions, they remain subject to the discretion of each administration. Just as some of the Obama administration’s pro-transgender policies have been rolled back by the Trump administration, the latter is likely to find its policies undone in the future. Public opinion has generally tended toward greater acceptance of LGBT people serving in the military, suggesting that this issue will continue to be litigated in the courts, in public opinion, and in government policy.

Further Reading

Belkin, A., & Embser-Herbert, M. S. (2002). A modest proposal: Privacy as a flawed rationale for the exclusion of gays and lesbians from the U.S. military. International Security, 27, 178–197.Find this resource:

Bérubé A. (1991). Coming out under fire: The history of gay men and women in World War Two. New York, NY: Plume.Find this resource:

Boswell, J. (1993). On the history of social attitudes toward homosexuality from ancient Greece to the present. In M. Wolinky & K. Sherrill (Eds.), Gays and the military (pp. 40–48). Princeton, NJ: Princeton University Press.Find this resource:

Brewer, P. R. (2008). Value war: Public opinion and the politics of gay rights. Lanham, MD: Rowman & Littlefield.Find this resource:

D’Amico, F. (2000). Sex/uality and military service. In C. A. Rimmerman, K. D. Wald, & C. Wilcox (Eds.), The politics of gay rights (pp. 249–268). Chicago, IL: University of Chicago Press.Find this resource:

Department of Defense. (2018). Department of Defense report and recommendations on military service by transgender persons. Washington DC: Author.Find this resource:

Dunivin, K. O. (1994). Military culture: Change and continuity. Armed Forces and Society, 20, 531–547.Find this resource:

Koppelman, A. (1995). Gaze in the military: A response to Professor Woodruff. UMKC Law Review, 64, 179–193.Find this resource:

Levine, P. (2016). Transgender service in the U.S. military: An implementation handbook. Washington DC: Author.Find this resource:

Marcosson, S. A. (1995). Before we change the subject … A reply to Mr. Young. UKMC Law Review, 64, 117–119.Find this resource:

Mazur, D. H. (1996). The unknown solider: A critique of gays in the military scholarship and litigation. U.C. Davis Law Review, 29, 223–281.Find this resource:

Pelts, M. D., Rolbiecki, A. J., & Albright, D. L. (2015). A review of the social work literature on gay, lesbian and bisexual military service members and veterans. Journal of Social Work, 15(2), 207–220.Find this resource:

Pierceson, J. (2016). Sexual minorities and politics: An introduction. Lanham, MD: Rowman & Littlefield.Find this resource:

Rostker, B. D., Hosek, S. D., & Vaiana, M. E.. (2011). Gays in the military: Eventually, new facts conquer old taboos. RAND Review, 35(1), 1–11.Find this resource:

Wells-Petry, M. (1995). Sneaking a wink at homosexuals: Three case studies on policies concerning homosexuality in the United States armed forces. UKMC Law Review, 64, 3–57.Find this resource:

Witten, T. M. (2007). Gender identity and the military: Transgender, transsexual, and intersex-identified individuals in the U.S. armed forces. Santa Barbara, CA: Michael D. Palm Center, University of California.Find this resource:

Woodward, R., & Duncanson, C. (2017). The Palgrave international handbook of gender and the military. London, U.K.: Palgrave Macmillan.Find this resource:

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Notes:

(1.) This article generally refers to LGBT people, using the term “LGB people” when a policy or issue did not impact transgender people. However, during the time periods covered here, the term “homosexual” was used extensively, either as a term to refer to LGB people broadly or because the military was generally focused on men and did not distinguish between gay and bisexual men. As a result, the authors use both “LGB” and “homosexual” here.

(2.) Departmental here refers to the Department of War. The Department of Defense was established in 1949.

(3.) The Uniform Code of Military Justice replaced the Articles of War. The UCMJ continued to define sodomy as a criminal offense until 2014.

(4.) When one version of DoDI 1332.14 is replaced with another, the new one takes the same number, but with a new date of issue.

(5.) Note that although DoDI 1332.14 applies to enlisted personnel, related documents apply similar rules to officers.

(6.) Note that a DoD study completed in 1988 found no evidence that LGB service members posed greater security risks (Wicker et al., 1992, p. 31). See also Kier (1998).

(7.) Parris Island is a recruit depot that provides initial training for recruits to the Marine Corps.

(8.) This last point was relevant because part of the concern about lifting the exclusion policy was how heterosexual service members would react.

(9.) See the discussion in Schaefer et al. (2016), which follows the terminology set by the American Psychiatric Association.

(10.) See, for example, Secretary Mattis’s February 22, 2018 memo which refers to transgender people as “those persons whose gender identity differs from their biological sex.”

(11.) The Department of Homeland Security was included because the Coast Guard is one of the five armed forces but is situated under the Department of Homeland Security in peacetime.