Dadt Military Policy to End September 20, 2011

LESBIAN/GAY LAW NOTES September 2011 169 DADT MILITARY POLICY TO END SEPTEMBER 20, 2011 On July 22, President Barack Obama an- first decade, as discharges rose through the policy, and a district court concluded on nounced that Secretary of Defense Leon 1990s. However, with the advent of wars in remand, 739 F.Supp.2d 1308 (W.D.Wash. Panetta and Admiral Michael Mullen, Afghanistan and Iraq early in this century, 2010), that the government was unable to chairman of the Joint Chiefs of Staff, had the number of discharges declined as mili- meet that burden in an “as applied” chal- joined him in signing a certification to the tary commanders were less eager to remove lenge. designated chairs and ranking members of satisfactorily-performing personnel from In another case pending in a district the armed services committees in Congress the theater of war. Legal challenges to the court in the 9th Circuit, brought by the that the Don’t Ask, Don’t Tell Repeal Act policy were ultimately unsuccessful during Log Cabin Republicans, a gay political of 2010 could be implemented. Delivery the 1990s, as the looming Supreme Court group suing as representative of two of of the certification to Congress that after- precedent of Bowers v. Hardwick (1986) its members, a trial judge ruled that the noon set the 60-day period in motion for made it difficult for courts to accept the DADT policy was not sustainable under final repeal of the policy, which had been argument that individuals who might en- Due Process heightened scrutiny, and is- enacted by Congress in 1993 as a “compro- gage in conduct that the government could sued a worldwide injunction against its mise” between President William J. Clin- – and did – designate as criminal, nonethe- enforcement in October 2010, which was ton’s campaign pledge that the existing ban less had a constitutional right to remain in stayed by the 9th Circuit pending the gov- on military service by gay people would be the service. ernment’s appeal. 204. Log Cabin Republi- ended, and the position of military leaders A turning point came after the Supreme cans v U.S., 716 F.Supp.2d 884 (C.D. Cal. who sought to preserve the existing policy, Court’s 2003 ruling in Lawrence v. Texas 2010). Two months after the stay was is- arguing that allowing gay people to service that criminal sodomy laws violated the Due sued, Congress passed the DADT Repeal would seriously undermine good order, Process rights of gay people, which led the Act, and the government pushed the 9th morale, unit cohesion, and military recruit- 9th and 1st Circuits to rule in challenges to Circuit to delay briefing and argument. ment. The “compromise” was, in effect, that DADT that heightened scrutiny should be The 9th Circuit moved ahead with a applicants for enlistment would no longer given to the government’s justification for briefing schedule in light of the failure of be asked about their sexual orientation and the policy in the context of a Due Process the Repeal Act to provide any deadline for that gay people could serve as long as they challenge. (Both circuit courts agreed with repeal, and the government responded by did not engage in any “homosexual con- the government that heightened scrutiny shifting its argument on appeal, contend- duct,” which was defined to include saying would not apply to an Equal Protection ing that the question whether the policy or doing anything that would communicate challenge.) In a test case in the 1st Cir- as originally adopted was unconstitutional to others that they might have a “propen- cuit, Cook v. Gates, 528 F3d 42 (2008), the was mooted by the Repeal Act, leaving be- sity” to engage in homosexual conduct. court found that the legislative record com- fore the court only the question whether Enactment of the policy also left in place piled in 1993, together with the deference the Repeal Act itself, by keeping the policy Article 125 of the Uniform Code of Mili- that courts ordinarily give to the political in place through a transitional period prior tary Justice, which made anal or oral sex branches and military leaders in matters of to repeal, was itself unconstitutional. As to a military crime. An individual who said military personnel policy, were sufficient to that, the government argued that its desire they were gay was presumed to have a pro- sustain the statute against a facial challenge. for an orderly transition accompanied by pensity to engage in homosexual conduct, But in Witt v. Department of the Air Force, regulatory changes and instruction to ser- and thus was to be discharged under the 527 F.3d 806 (2008), the 9th Circuit ruled vice personnel, provided sufficient justifica- policy for having “told.” that heightened scrutiny held that dis- tion to keep the policy in place during the Although the DADT policy was expect- charging Major Witt, a highly-decorated transitional period. Early in July, the 9th ed to reduce the number of service members Air Force nurse, would be unconstitutional Circuit panel lifted the stay, but partially who were discharged for “homosexuality,” unless the government could show that do- reinstated it in response to an “Emergency it actually had the opposite effect during its ing so served an important governmental Motion” by the government, which urged LESBIAN/GAY LAW NOTES September 2011 Editor: Prof. Arthur S. Leonard, New York Law School, 185 W. Broadway, NY, NY 10013, 212-431-2156; e-mail: [email protected] or arthur.leonard@ nyls.edu Contributing Writers: Alan J. Jacobs, Esq., New York City; Bryan Johnson, Esq., New York City; Steven Kolodny, Esq., New York City; Daniel Redman, Esq., San Francisco; Brad Snyder, Esq., New York City; John Teufel, Brooklyn Law ’13; Eric Wursthorn, Esq., New York City; Kelly Garner, New York Law School ’12; Stephen E. Woods, Esq., New York City. Circulation: Administrator, LEGAL, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118; e-mail: [email protected]. Inquire for rates. LeGaL Homepage: http://www.le-gal.org Law Notes on Internet: http://www.nyls.edu/jac ©2011 by the LeGaL Foundation of the LGBT Law Association of Greater New York ISSN 8755-9021 170 September 2011 LESBIAN/GAY LAW NOTES patience as certification was said to be “im- on personnel who engaged in conduct de- kind towards the payment of hormone minent.” Shortly thereafter, the certifica- scribed in that provision, but it was possible therapy or sexual reassignment surgery tion to Congress took place, initiating the that the repeal of DADT might lead the for inmates. The inmate plaintiffs, Andrea final 60 day period leading to repeal. military appeals courts to reassess their po- Fields, Matthew Davison (also known as As of the end of August, when this issue sition. Jessica Davison) and Vankemah Moaten, of Law Notes went to press, oral argument The final disappearance of “Don’t Ask, are male-to-female transsexuals who, prior was scheduled to take place early in Sep- Don’t Tell” meant that many law schools to the enactment of Act 105, received hor- tember, just weeks before repeal would go that had barred military recruiters in the monal therapy as treatment for GID. As into effect. Log Cabin Republicans argued, past because of that policy were rethink- inmates are not allowed to seek medical contrary to the government, that the case ing their positions, on the ground that their treatment of any kind outside of the prison, should not be dismissed as moot, because students seeking potential legal jobs with even if they can afford it, Act 105 removed the question whether the district court’s the armed forces could not longer be dis- the only means by which the plaintiffs ruling on the merits was correct remained qualified based on sexual orientation. But could obtain hormone therapy. Initially, significant for damage claims relating to the Society of American Law Teachers sent the three plaintiffs brought the suit as a injuries suffered by lesbian and gay service a letter to its members stressing that the class action on behalf of all DOC inmates members due to the application of DADT lack of a non-discrimination provision in requiring treatment for GID. Although to them over a period of 17 years. There the Repeal Act, together with the continue the district court denied their motion for were other pending legal disputes concern- influence of DOMA constraining benefits class certification, the suit, based on each ing attempts by the Defense Department that can be provided to same-sex military plaintiff ’s individual claims against the to recapture ROTC scholarship money spouses, meant that the military could still DOC, was allowed to go forward. from individuals who were dismissed under be considered a discriminatory employer. Judge Gottschall devotes the first por- DADT, as well as attempts to recapture the A.S.L. tion of her opinion to summarizing the value of military service academy tuition evidence presented to the district court from officers who were dismissed under the LESBIAN/GAY LEGAL concerning both GID and its treatment. policy. If the policy was unconstitutional, Plaintiffs presented expert witnesses who those claims would be strengthened. NEWS AND NOTES specialize in the treatment of individuals Servicemembers Legal Defense Net- diagnosed with GID and who testified to work, the advocacy organization formed in 7th Circuit Invalidates Wisconsin the psychological suffering experienced by 1993 to lobby for repeal of the policy, issued Inmate Sex Change Prevention people with GID, including severe depres- a guide to assist LGBT service members in Act sion which can lead to suicidal thoughts.

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