LGBTQ+ veterans’ suit over discharge papers clears first judicial hurdle

A lawsuit filed by LGBTQ+ veterans who were discharged under rules
that barred gay Americans from serving in the military cleared its first
judicial hurdle Thursday when a federal judge denied a motion filed by
the U.S. Department of Defense to dismiss the case.

According to the federal complaint filed last year,
35,081 veterans were discharged or separated from the armed forces
between 1980 and 2011 “because of real or perceived homosexuality,
homosexual conduct, sexual perversion or any other related reason.” Most
of those veterans, including four of the five named plaintiffs,
received less-than-honorable discharges — a permanent distinction that
is sometimes visible to third parties.

The goal of the putative
class action is to have the government remove all references to the
LGBTQ+ veterans’ sexual orientation from their discharge papers, and
when applicable, upgrade those discharges to ‘honorable.’ There is
currently an administrative process for this to be done, but the
plaintiffs call it lengthy and burdensome, sometimes requiring them to
obtain “statements from their military supervisors (who may have
participated in the discrimination) [and] letters of support from
colleagues and friends (to whom the applicant must disclose the trauma
of their discharge).”

“The government’s discriminatory discharges
and resulting discharge paperwork have ripple effects throughout the
lives of LGBTQ+ veterans,” the plaintiffs say in their suit. The
discharge papers, known as DD-214 forms, “further isolate LGBTQ+
veterans from the veteran community, which is typically an important
source of social and emotional support among those with shared lived
experiences.”

The veterans say that being identified as gay on
their DD-214s amounts to an unconstitutional invasion of privacy and
violates the equal protection clause of the Constitution.

“By
including this private information on their proof of military service,
the government has unnecessarily invaded these veterans’ private lives
and infringed their right to keep sexual and relationship information
private,” the complaint reads. “For these veterans, proving their
military service can therefore have the immediate effect of disclosing
the veteran’s sexual orientation (i.e., outing them).”

Military
service can substitute for certain forms of training — like that
required, say, for working as a security guard or private detective.
Veterans are also sometimes eligible for private discounts at stores or
restaurants — IHOP offers free meals to servicemembers on Veterans Day,
for example. To be eligible for these discounts, veterans must often
present proof of service, such as a special symbol on their driver’s
license. Veterans who have been less-than-honorably discharged are
ineligible for such symbols.

Homosexuality was banned in the U.S.
military for much of its existence, going all the way back to the
Revolutionary War. In 1993, the Bill Clinton administration implemented a
policy, officially known as “Don’t Ask, Don’t Tell” (DADT)
— effectively still a ban on open homosexuality in the military, the
policy encouraged gay and lesbian servicemembers to remain closeted.
Still, around 14,000 troops were discharged under the policy, before it
was repealed by President Barack Obama in 2011.

The
Department of the Defense filed a motion to dismiss the lawsuit,
arguing that the claims in the suit fell outside the six-year statute of
limitations window. It pointed out that since DADT was repealed, it had
reviewed more than 1,683 applications for records corrections, and had
granted more than 1,400 of them. It said that its policy regarding
DD-214 forms is not unconstitutional because it was not implemented with
“discriminatory intent.”

U.S. Magistrate Judge Joseph Spero disagreed, writing
in his 44-page ruling, “Plaintiffs’ equal protection claim is based on
defendants’ affirmative decision to leave the discharge paperwork of
veterans discharged under DADT and predecessor policies unchanged and
place the burden on veterans who were discharged on the basis of sexual
orientation to seek a correction of their paperwork.”

“Plaintiffs
have included extensive allegations in the [first amended complaint]
about the trauma inflicted on them by the approach defendants have
chosen to take to handling the sexual orientation information (and
sometimes associated dishonorable discharge information) reflected on
their discharge paperwork,” Spero added.

Spero also concluded that
the plaintiffs’ claims are not time-barred because the violation to
their constitutional rights are ongoing.

In a written statement,
the plaintiff’s legal team at the nonprofits Impact Fund and Legal Aid
at Work, and law firm King & Spalding, praised the ruling.

“This
ruling allows us to move forward in rectifying the discriminatory
effects of the Department of Defense’s policies, ensuring that LGBTQ+
veterans receive the honor they rightfully deserve, having served our
country with dignity and integrity,” reads the statement.