2018 NJSBA Annual Meeting

2018 NJSBA Annual Meeting LGBT & Women’s Issues in the Military Co-Sponsored by the Military Law and Veterans Affairs Section, the LGBT Rights Section and the Diversity Committee Moderator/Speaker: Shawn LaTourette, Esq. Gibbons P.C., Newark Speakers: Lt. Colonel (Ret.) Sarajane (Sally) Stenton Law Office of Robert Ebberup, Toms River Sergeant Major Jennifer Long, U.S. Army (Ret.) Highest Ranking Non-Commissioned Officer Stephen Lessard, Esq., Surface Warfare Officer, U.S. Navy. (Ret.) Orrick, President Elect of the New York County Lawyers Association LGBT & WOMEN’S ISSUES IN THE MILITARY presented by: LGBT Rights Section Military Law & Veterans Affairs Section Diversity Committee Newark ♦ New York ♦ Trenton ♦ Philadelphia ♦ Wilmington ♦ gibbonslaw.com LGBT & Women’s Issues in the Military • Shawn M. LaTourette (Gibbons P.C.) – Moderator • Stephen C. Lessard (Orrick, Herrington & Sutcliffe LLP ) – Former U.S. Navy • Jennifer Marie Long (Integrated Financial Concepts) – Former U.S. Army • Sally Stenton (Law Offices of Robert A. Ebberup) – Former U.S. Air Force gibbonslaw.com ♦ Gibbons is headquartered at One Gateway Center, Newark, NJ 07102. Sexual Orientation, Gender Identity, and Military Service Past, Present, and Future Stephen C. Lessard A Brief History of “Don’t Ask, Don’t Tell” • Historically, the U.S. military did not officially exclude homosexuals. – However, sodomy was considered a criminal offense as early as the Revolutionary War. – Lieutenant Gotthold Frederick Enslin is the first recorded discharge for sodomy (1778). • At the start of WWII, the focus moved from homosexual conduct to the homosexual as a person. • Driven by the psychiatric profession’s view of homosexuality as a mental illness. • As the war effort expanded and personnel shortages arose, screening procedures were loosened. Orrick May 18 5 A Brief History of “Don’t Ask, Don’t Tell” • Generally, opposition to gay and lesbian members in the Armed Forces intensified following World War II. – Throughout the 1950s and 1960s, acknowledging a homosexual orientation barred an individual from military service. – In 1951, the UCMJ was adopted and made sodomy a crime. • In the 1970s, a movement emerged in the United States that pressed for civil rights for gay men and lesbians. • Court challenges to the military policy arose. • Although largely unsuccessful, they highlighted inconsistent policies among the branches of the Armed Forces. Orrick May 18 6 A Brief History of “Don’t Ask, Don’t Tell” • In 1981, the DOD formulated a new policy which stated unequivocally that homosexuality is incompatible with military service. – According to a 1992 GAO report, nearly 17,000 men and women were discharged under the category of homosexuality in the 1980s. • By the end of the 1980s, reversal of the military's policy was emerging as a priority for advocates of gay and lesbian civil rights and grassroots civilian opposition appeared to be increasing. – In 1992, legislation to overturn the ban was introduced in the U.S. Congress. – Many colleges and universities had banned military recruiters and Reserve Officers Training Corps (ROTC) programs from their campuses. Orrick May 18 7 A Brief History of “Don’t Ask, Don’t Tell” • During the 1992 U.S. presidential election campaign, all Democratic candidates supported ending the ban on military service. – Bill Clinton had made his first public statement on ending the ban in October 1991. • Shortly after his inauguration in 1993, President Clinton asked the Secretary of Defense to prepare a policy to end the ban on military service by gays and lesbians through an executive order. – Clinton's proposal was intensely opposed by the Joint Chiefs of Staff, members of Congress, and a large segment of the U.S. public. – Congressional Republicans threatened to codify the existing ban. Orrick May 18 8 A Brief History of “Don’t Ask, Don’t Tell” • President Clinton and Senator Sam Nunn (D-GA), chair of the Senate Armed Services Committee, reached a compromise which they labeled “Don't Ask, Don't Tell, Don't Pursue.” – Under the policy, military personnel would not be asked about their sexual orientation and would not be discharged simply for being gay. – Engaging in homosexual conduct would constitute grounds for discharge. • Conduct included acts and admissions. • In the fall of 1993, the Congress voted to codify the compromise. Orrick May 18 9 A Brief History of “Don’t Ask, Don’t Tell” • The “Don't Ask, Don't Tell” policy included many aspects of the military’s prior ban on military service but introduced new, important procedures. – The military could no longer ask about sexual orientation in recruiting. – The military could no longer seek investigate the sexual orientation of an individual without reasonable cause. – An individual must receive an Honorable discharge unless other service factors or aggravating circumstances existed. • Generally, conduct in violation of the UCMJ. Orrick May 18 10 A Brief History of “Don’t Ask, Don’t Tell” • With the beginning of the new century, public opinion began to shift in favor of allowing service by gay and lesbian personnel. – In December 2003, a Gallup poll showed 79% of U.S. adults (including 68% of self-described conservatives) in favor of allowing open service. – In July 2004 the American Psychological Association declared DADT discriminatory, finding no empirical evidence supporting the policy. – In February 2005, the GAO released a report detailing the high cost of DADT. – In November 2008, 104 retired generals and admirals signed a statement urging repeal of DADT. – A DoD study conducted in 2010 deemed the overall risk to military effectiveness of lifting the ban to be low. • On December 22, 2010, the “Don’t Ask, Don’t Tell” policy was repealed. Orrick May 18 11 Transgender Service Current Policies Transgender Service – Policy History • For decades, transgender individuals could not serve openly in the U.S. Armed Forces. • The repeal of DADT allowed open service by gay, lesbian, and bisexual service members; however, transgender individuals were still barred from openly serving in or joining the military. – This ban was effective via enlistment health screening regulations which denied individuals the ability to enlist if they had a current or history of psychosexual conditions, including but not limited to “transsexualism, exhibitionism, transvestism, voyeurism, and other paraphilias." Orrick May 18 13 Transgender Service – Policy History • In 2015, the Department of Defense (“DoD”) began a review of its existing regulations, looking at medical and military dimensions of service by transgender persons. • In June 2016, the Secretary of Defense (“SecDef”) announced a policy allowing for transgender military personnel to serve openly, to provide medically necessary care, and to allow transgender individuals to access military service. – That policy was the result of a review process by high-ranking military personnel, supported by a RAND Corporation study, which concluded that permitting transgender people to serve would have, at most, an insignificant adverse effect on military readiness or effectiveness. Orrick May 18 14 Transgender Service – Policy History – In July 2017, President Trump tweeted his Administration’s decision to bar transgender individuals from serving in “any capacity.” – On February 22, 2018, the SecDef made recommendations for implementation of a ban on service by transgender individuals. – On March 23, 2018, the Administration announced a new policy regarding the service of transgender individuals in the U.S. Armed Forces. • While the SecDef will have some latitude in implementing the policy, “persons with a history or diagnosis of gender dysphoria — including individuals who the policies state may require substantial medical treatment, including medications and surgery — are disqualified from military service except under limited circumstances.” Orrick May 18 15 Transgender Service – The Current Policy • Transgender persons with a history or diagnosis of gender dysphoria are disqualified from military service, except under the following limited circumstances: – If they have been stable for 36 consecutive months in their biological sex prior to accession; – Service members diagnosed with gender dysphoria after entering into service may be retained if they do not require a change of gender and remain deployable within applicable retention standards; and – currently serving service members who have been diagnosed with gender dysphoria since the previous administration’s policy took effect and prior to the effective date of this new policy, may continue to serve in their preferred gender and receive medically necessary treatment for gender dysphoria. • Transgender persons who require or have undergone gender transition are disqualified from military service. • Transgender persons without a history or diagnosis of gender dysphoria, who are otherwise qualified for service, may serve in their biological sex. Orrick May 18 16 Legal Assistance Change of Military Records Legal Assistance • DD Form 214 and Discharge Characterizations • Changing/Correcting Military Records • Board for Correction of Military Records • Name Changes • Discharge Review Board • Discharge Upgrades DD Form 214 • What is it? – The most important discharge document a veteran receives. – It is a one page record of the veteran’s military service. – There is no gender marker on a DD 214. • Why is it important? – It is proof of the veteran’s military service. – Required to prove entitlement to various veterans’

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