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’ benefits, including health, housing, and education benefits. – Also often crucial to a veteran for employment purposes. Military Discharges

• A discharge terminates the contract to serve in the military. – Only enlisted personnel are discharged. – Officers resign their commission. – Discharges are either Administrative or Punitive • Characterizations of discharge – Honorable – General Under Honorable Conditions (a “General”) – Other Than Honorable (an “OTH”) – Bad Conduct (a “BCD”) – punitive only – Dishonorable – punitive only Importance of Discharge Characterization

• Veterans Benefits – Affects both federal and state benefits – OTH’s may or may not get medical benefits – GI Bill education benefits (only Honorable) – Home loans • Employment – Veterans preferences – Stigma, employability Typical Bases for Correction

• Genuine Error • Changing Standards / Law • Failure to Counsel • Regulatory Violations • Clemency • Any Circumstance that Creates an Injustice Typical Corrections

• Awards • Separations / Discharge • Disability review • Performance Evaluation Reports • Pay and Allowances • Clemency Petitions • Article 15 (UCMJ) • Punishment • Memoranda of Reprimand Changing/Correcting Military Records

• Who Changes or Corrects Military Records? – Each branch of the military corrects its own records. – There are two administrative boards in each branch with the authority to change military records including the DD 214. – Discharge Review Boards (DRB) and Boards for Correction of Military Records (BCMR/BCNR). – DRB decisions can be appealed to the BCMR/BCNR. BCMR

• Mission – Correct errors or remove injustices from military records for Active Duty, Reserve, and former Service Members. – “The Secretary... acting through boards of civilians... may correct any military record... when necessary to correct an error or injustice...” (10 U.S.C. §1552) • Highest level of administrative appeal in the Department of the Army / Navy / Air Force – Decisions are “final agency action” – Federal Courts apply an “arbitrary and capricious” standard of review” BCMR Authority

• Powers are very broad – Board cannot change the law, but can change the facts in a military record to make them fit the law • To remove an injustice, the Board can change a record to reflect the way things should be, rather than how they actually are • BCMR can review decisions of DRB – Petitioners must exhaust administrative remedies – Discharges < 15 yrs old should be reviewed by Discharge Review Board BCMR Authority

• Limitations – Statute of Limitations: 3 years; may be waived in the interest of justice – Reconsideration: By regulation requires “new and material evidence” within one year of BCMR decision – No authority, sua sponte, to review records. BCMRs can only act on a petition from an individual veteran or directive by Service Secretary on behalf of a group similarly harmed by the same error or injustice. – Cannot overturn court-martial convictions, but can grant clemency – Cannot change records of other agencies, or actions taken by the President

DRB

• DRB reviews the propriety of the discharge (was it “inequitable” or “improper”) – Similar to BCMR/BCNR authority to review for the “correction of an error or injustice” – Inequitable means the reason or characterization of the discharge is not consistent with the policies and traditions of the service. » An inequity might include a discharge based on one isolated incident in four years of unblemished service. – Improper means that the reason or characterization of the discharge is in error (i.e., is false, or violates a regulation or a law). » Improper might include a case where the applicant received an OTH for solely an admission of sexual orientation. DRB

• Authority – Can change characterization of discharge and reasons for discharge (cannot change reason to physical disability) – Cannot review General Court-Martial discharges » Can review Special Court-Martial Bad Conduct Discharge • Process – Board of first instance – 15 year statute of limitations (strictly enforced) – Two types of review » Record (documentary) review » Personal hearing (must be granted if requested) DRB

• Record Review – Should be requested first unless SOL is an issue – Service record and documentation submitted reviewed by analyst – Analyst’s report used by DRB to render a decision • Personal Hearing – Requires submission of new Form DD 293 – In Washington DC (AF DRB travels to four regional locations) – Board of five senior officers – No formal rules of evidence – Hearing is recorded • Application is made by use of a DD Form 293 Advising Clients: BCMR or DRB?

• Discharge character, reason, or reenlistment code? – DADT – DRB or BCMR • Other relief (advancement, evaluation, pay)? – Name change – BCMR only • Limitations on applying to DRB: – Discharge must be less than 15 years ago – Cannot review discharge awarded by General Court- Martial – Cannot award back pay or separation pay Advising Clients

• Leverage all review opportunities: – DRB document review – DRB personal appearance – BCMR petition – Federal Court • Build the administrative record at every stage of representation. • Obtain all admin service records, medical documents, or other information needed for a BCMR case. BCMR Policies

• “Don’t Ask, Don’t Tell:” BCMRs will normally grant change of discharge (characterization, narrative reason, RE codes) – If discharge was based solely on homosexuality (orientation, statement, act) – If there were no aggravating factors, such as misconduct. – Pre-DADT: Change in law • Name Changes: – Applicant must demonstrate that having their former name on their DD-214 causes an injustice (e.g., gender identity) – Evidence should include court order showing applicant’s name was legally changed. However, even absent court order, the Boards consider each application on its own merits. Questions?

Women in the Military Revolutionary War to Present

Sally Stenton, Esquire Law Offices of Robert A. Ebberup, LLC ebberuplaw.com Of Counsel 609 Main Street (732) 797-2411 (Office) Lt Col, USAF, (Ret) P.O. Box 4917 (732) 797-0048 (Fax) Toms River, NJ 08754 [email protected] Women in the Military Revolutionary War to Present Civil War Dr. Mary E. Walker

Sally Stenton, Esquire Law Offices of Robert A. Ebberup, LLC ebberuplaw.com Of Counsel 609 Main Street (732) 797-2411 (Office) Lt Col, USAF, (Ret) Toms River, NJ 08754 (732) 797-0048 (Fax) [email protected] Women in the Military Revolutionary War to Present • Operations Enduring Freedom and Iraqi Freedom • 15% of U.S. Military is Women • Over 300,000 Women have served in OEF and OIF • Women “Attached” not Assigned to Combat Units • First AF female Commander of a Fighter Squadron. • Army Sergeant Leigh Ann Hester Awarded Silver Star for Combat Action – OIF • PFC Monica Lin Brown Combat Medic Awarded Silver Star - OEF • 160 Women KIA; Thousands WIA • “Cultural Support Teams” – Army Rangers and Female Soldiers; women enablers, see the kind of combat missions experienced by less than 5% of the entire U.S. military; these were some of the most vital — and most dangerous — operations America was then undertaking. Talking with women, keeping them away from an operation happening elsewhere in the compound and seeking to learn vital information that could save Afghan and American lives.

Sally Stenton, Esquire Law Offices of Robert A. Ebberup, LLC ebberuplaw.com Of Counsel 609 Main Street (732) 797-2411 (Office) Lt Col, USAF, (Ret) Toms River, NJ 08754 (732) 797-0048 (Fax) [email protected] Women in the Military Revolutionary War to Present • 1973 Military draft (males only) ends; all-volunteer military is formed creating opportunities for women. • 1976 First females admitted to service academies, to be trained in military science. • 1991–1992 Persian Gulf War, > 41,000 women deployed to combat zone. Congress authorizes women to fly in combat missions. • 1998 Women fighter pilots fly combat missions off aircraft carrier in Operation Desert Fox, Iraq. • 2008 Ann E. Dunwoody military’s first women to be promoted to general (4 star). • 2012 —Military opens more than 14,000 jobs in smaller units closer to the front lines. • 2013 — Sec Def Leon Panetta and Gen. Martin Dempsey, chairman of the Joint Chiefs, sign order ‘women must have the same opportunities as men in combat jobs.” • 2014 — Adm. Michelle Howard is the first woman to become four-star admiral. • 2015 —Army to allow women to attend Ranger school in the spring 4 become first female graduates. • Sep 2015 — Deadline for services to develop and validate gender-neutral standards for all jobs. • 2016 — Deadline for full integration of women into all military jobs, other than any granted exceptions. First female soldier joins Army’s elite 75th Ranger Regiment. • 2017 — Three women become first female infantry Marines

Women in the Military Revolutionary War to Present “Since the end of the military draft in 1973, every person joining the U.S. armed forces has done so because he or she asked to be there. Over the past decade, this all- volunteer force has been put to the test and has succeeded….” Thomas E. Ricks April 19, 2012 Washington Post

April 3, 2018

The Honorable James N. Mattis Secretary Department of Defense 1000 Defense Pentagon Washington, DC 20301-1000

Dear Secretary Mattis:

On behalf of the physician and medical student members of the American Medical Association (AMA), I am writing to express our concern about the new policy recently approved by President Trump imposing limits on transgender individuals serving in the military. This new policy, based on recommendations you made in February to President Trump, states that “transgender persons with a history or diagnosis of gender dysphoria—individuals who the policies state may require substantial medical treatment, including medications and surgery—are disqualified from military service except under certain limited circumstances” (Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security Regarding Military Service by Transgender Individuals, May 23, 2018).

We believe there is no medically valid reason—including a diagnosis of gender dysphoria—to exclude transgender individuals from military service. Transgender individuals have served, and continue to serve, our country with honor, and we believe they should be allowed to continue doing so. We share the concerns recently expressed by former Surgeons General M. Joycelyn Elders and David Satcher that the Defense Department’s February 22, 2018, Memorandum for the President mischaracterized and rejected the wide body of peer-reviewed research on the effectiveness of transgender medical care. This research, demonstrating that medical care for gender dysphoria is effective, was the rationale for the AMA’s adoption of policy by our House of Delegates in 2015, that there is no medically valid reason to exclude transgender individuals from military service.

The AMA also supports public and private health insurance coverage for treatment of gender dysphoria as recommended by the patient’s physician. We support the finding of the RAND study conducted for the Department of Defense on the impact of transgender individuals in the military that the financial cost is negligible and a rounding error in the defense budget. It should not be used as a reason to deny patriotic Americans an opportunity to serve their country. We should be honoring their service.

Sincerely,

James L. Madara, MD

Stephen C. Lessard is a senior associate in the Tax Group at Orrick, Herrington & Sutcliffe LLP where his practice includes the taxation of financial products, debt and equity offerings, cross-border transactions, and mergers and acquisitions. He is active with the firm’s Diversity and Recruiting Committees, and serves in the leadership of the firm’s Veterans Forum and LGBT Affinity Group. He has engaged in a number of pro bono projects, including providing tax advice to non-profit organizations, assisting veterans to upgrade their military discharge, providing life planning advice to LGBT individuals, and volunteering with the Servicemembers’ Legal Defense Network advising military personnel on the “Don’t Ask, Don’t Tell” policy.

Mr. Lessard is a member of the National LGBT Bar Association’s Military Working Group, where he handled a project representing transgender veterans seeking to amend their military documents to reflect name changes. This project resulted in the military services revising their policies to permit transgender veterans to change the name on their discharge certificates to match their gender identity.

During a 20-year career with the U.S. Navy, Mr. Lessard served in a number of positions on ships and ashore as a Surface Warfare Officer. He was honored with various personal and unit awards, including the Meritorious Service Medal, Navy Commendation Medal, and Navy Achievement Medal.

Mr. Lessard graduated from Texas A&M University and received a Master of Arts degree from the University of Virginia. Mr. Lessard earned his law degree from Georgetown University Law Center. He currently serves as President-Elect of the New York County Lawyers Association and is a member of the American Bar Association House of Delegates, the New York State Bar Association (NYSBA) House of Delegates, and the NYSBA Committee on Veterans. He was named a Minority Corporate Counsel Association 2015 Rising Star and to the New York Metro Super Lawyers Rising Stars list for 2014 through 2017. He also received a NYSBA 2016 President’s Pro Bono Service Award. Mr. Lessard is admitted to the Bar in New York, the United States Tax Court, and the Fifth Circuit Court of Appeals. Lt Col (Ret) Sarajane (Sally) Stenton is currently Of Counsel at the Law offices of Robert A. Ebberup. She represents veterans in VA disability claims and discharge upgrades. She also represents Active Duty, National Guardsmen, and Reservist in criminal and civil matters. Sally is a retired Air Force Judge Advocate General with extensive experience and expertise in criminal law, courts-martial, and trial advocacy training. After retiring from the AF, she earned her LL.M. in Trial Advocacy. She is the secretary of the Military Law and Veterans Affairs section of the NJSBA. She is an adjunct law professor at Rutgers Law School, teaching Military Law and Criminal Procedure. She is a combat veteran, who deployed three times, including a year in Afghanistan.

Jennifer Marie Long is currently a financial service professional with Integrated Financial Concepts. She holds the office of Post Commander for her local Veterans of Foreign Wars (VFW) Post 1302, VFW District 3 Commander (Hudson County). National Association of Financial Advisors (NAIFA) as the Executive Board Chairwoman of Government Relations and Political Action State Committee. Selected by Governor Murphy, as Co-Chair, for Veterans and Military Affairs Transition Team. In 2009, after completing a military deployment in Iraq, she began her transition by starting hormone replacement therapy (HRT). In 2010, with another deployment, this time to Afghanistan, she delayed her legal portion of transition. Upon her return in July 2011, was presented with the Bronze Star Medal and French National Defense Medal for her actions in Afghanistan and retired after 30 years of military service at the rank of Sergeant Major (SGM). She returned to Fairleigh Dickinson University to complete her degree in finance and finalize the legal portion of her transition. During May 2012, she legally became Jennifer Marie Long. Robert Wood Johnson University, serving as a Board member on the committee to advance transgender education, and care. In 2015, she won a case against the Department of the Army, represented by the ACLU of NJ, allowing her to change the name on the DD214 record of military service. This landmark decision will help pave the way for other former transgender service members. ACLU of NJ recipient of the Torch Bearer award for activism in 2016.