SLDN: To Be or Not to Be? The Case for SLDN to Continue Past DADT Repeal
By Tom Carpenter
“Our goal should be to go out of business!” I said at my first board meeting of Servicemembers Legal Defense Network (SLDN) in 1995.
There were six of us developing what then-Board co-chair Zoe Dunning, a Lt. Commander in the Naval Reserves, called the “911” for servicemembers in trouble over “Don’t Ask, Don’t Tell” (DADT), passed into law in 1993. All of us agreed that our community didn’t need another self-perpetuating LGBT nonprofit organization, now commonly referred to as “Gay Inc,” whose primary mission is now open to question.
But just as it was clear then that SLDN’s ultimate goal was to change the military policy, repeal the congressional law and close our doors, it has become increasingly clear as repeal of DADT nears that SLDN must stay on the job until our servicemembers and the broader LGBT community has full equality under the law.
For instance, as active-duty Equality Colonel recently pointed out in an article entitled “DADT May Be Ending, But DOMA Still Creates Pain for Gays in the Military,” there may be on-going confusion as to the rights of partners and spouses of servicemembers as long as the Defense of Marriage Act (DOMA) is still in place. That is one area where SLDN can help serve as a watchdog, an arbiter and an advocate for change.
As a legal organization, SLDN not only counsels servicemembers but also investigates claims – providing evidence-based reports that lead to settlements or can stand up in court. This is critical for servicemembers who can’t afford outside legal counsel.
SLDN has always been about the people, as well as the issue. President Clinton – who had promised to lift the ban against open service - signed DADT in 1993 as a “compromise” with a belligerent Congress that wanted to make the ban permanent. Though our strategic plan called for SLDN to lead the way to repeal DADT, most of our efforts were directed towards providing legal assistance to servicemembers, our core mission. Repeal got pushed back further with the “defeat” of Vice-President Al Gore in 2000 and the reelection of George W. Bush in 2004. We had a divided government with no stomach for dealing with the issue of gays in the military.
But under the leadership of SLDN founders Michelle Benecke and C. Dixon Osburn, SLDN made public the plight and often tragic personal stories of servicemembers who had suffered under DADT. Americans could see how this law was unjust when they read about the murders of infantryman Barry Winchell and sailor Allen Schindler, the suicide of Marine Capt. Phil Adams and how Air Force Capt. Monica Hill was forced to out herself in order to be with her partner during surgery for brain cancer.
SLDN has been involved in several legal cases, including the Cook case – filed a little over a month after the Log Cabin Republican challenge to DADT was filed. And, in addition to filing an amicus brief in the successful Log Cabin case, SLDN provided several key witnesses to testify at trial. As it did in the Witt case, SLDN works with outside counsel to defend servicemembers unnamed servicemembers as well as named – such as Lt. Col Victor Fehrenbach.
I served as co-chair of the Board from 1998-2005 during our time in the wilderness and was proud to be partnered with four wonderfully strong, talented and dedicated women, Zoe Dunning, Teresa Vergas, Jody Hoenninger and Amy Courter. It was also the time when Benecke, a former Capt. in the Army, took on the rampant sexual harassment and lesbian baiting in the military. Civilian and military men blackmailed women – straight and gay – telling them that they would be outed as lesbians if the women didn’t have sex with them.
“Lesbian baiting is a ready weapon of sexual harassment,” Michelle told The Advocate in 1997. At the time, women made up only 13% of the military’s active forces but accounted for 21% of the discharges under DADT in 1995 and 30% of SLDN’s cases. Four years later, DOD reported that women accounted for 31% of DADT discharges, though they were only 14% of the military. Michelle pressed hard and the Under-Secretary of Defense wrote a strongly-worded memo that was subsequently ignored.
Sexual harassment will likely continue after repeal, and SLDN stands ready to fight for the women and men who are subjected to this illegal activity.
Keeping our eye on the prize of repealing DADT, SLDN conducted annual Lobby Days on Capitol Hill, meeting with members of Congress, as well as working on grassroots organizing around the country. All this groundwork was preparation for the selection of Aubrey Sarvis, a former long time Senate senior staffer, who left his own highly successful lobbying firm to become SLDN’s Executive Director. He would take this legislative effort to the next level, leading to the signing of the DADT Repeal Act of 2010 (Repeal Act). I’m convinced the Repeal Act would not have happened without Aubrey at the helm of SLDN.
So with DADT clinking into the dustbin of history on Sept. 20, 2011, shouldn’t SLDN be preparing to close up shop?
No, and here’s why. The Repeal Act is a mere shadow of the Military Readiness Enhancement Act (MREA) – which SLDN had been pushing for years. Comparing the language of the two acts, the major difference jumps right out. MREA starts out:
SEC. 2. PURPOSE.
The purpose of this Act is to institute in the Armed Forces a policy of nondiscrimination based on sexual orientation.
MREA goes on to require the DOD to change regulations to include sexual orientation as a protected class both for purposes of equal opportunity and victims’ advocacy programs.
The Repeal Act, which passed last year, is silent on both these very important issues.
The exclusion of a nondiscrimination provision coupled with the Defense of Marriage Act and internal DOD regulations defining “dependent” and “family member”, leads to a military made up of two classes of service members. The implications of these inequities to the leadership of the military, as well as those directly impacted by this unfairness, should be apparent.
In a July 22, 2011 briefing, Marine Major General Hummer, head of the Repeal Implementation Team, stated the protection provided by a law making it illegal to discriminate against service members based upon sexual orientation, is not necessary. Both he and former Marine Major General Dr. Clifford Stanley, Under Secretary of Defense(Personnel and Readiness), emphasized professionalism and mutual respect and contended military leadership will be able to handle the transition to open service without further regulations. They also pointed out that if a service member is not satisfied with the response of the command, they can take their case to the individual services’ Inspector General.
SLDN has called for the President to issue an executive order or the Secretary of Defense to issue a directive establishing a policy of nondiscrimination based upon sexual orientation and gender identity. In addition, it is working to obtain signatures on a petition asking the President to issue such an order. For the foreseeable future, SLDN cannot let down its guard.
Setting aside the issue of nondiscrimination protection, of immediate importance are the more than 40 other issues that need to be addressed to make all service members equal and correct the results of past discrimination for those who were discharged under DADT, and the earlier discriminatory personnel policies.
On July 28, 2011, SLDN announced a first-of-its-kind legal guide aimed at navigating LGBT military service in the post-DADT repeal environment. Many of the issues discussed in the SLDN guide will require experience with military regulations and law. Veterans who were discharged under DADT and the earlier policies who want to change their discharge papers to remove “homosexual conduct” or “homosexual admission” will need help through the administrative process to correct their record. SLDN is already providing this assistance.
For current servicemembers, most of the issues, still to be addressed, are related to the complicated question of family benefits. In regards to the many family benefit issues that now create two classes of servicemembers in committed relationships, in my opinion, there will need to be a coordinated effort with the active duty troops represented by OutServe to correct this situation while constrained by the discriminatory DOMA and the definitions of “dependent” and “family member” found in current military regulations. This may be possible through “work arounds,” again requiring legal and regulatory expertise.
It is clear that many of SLDN’s other allies in the successful fight for repeal of DADT will now turn to other pressing issues in the fight for LGBT equality. Besides SLDN, the only national organizations likely to stay focused on the issue of true equality within the military will be American Veterans for Equal Rights, Forum on the Military Chaplaincy, OutServe, Military Acceptance Project and Servicemembers United.
While it is likely our military’s experience will be similar to our closest allies, the British, Canadians and Australians, who have described the change as a “non-event,” we need to recognize there will be some bumps in the road and we need to prepare. Opponents of the Repeal Act want to reinstate DADT, or go back to a strict prohibition against all LGB service members in the military.
As allies experienced, there is likely to be instances of bulling, harassment and other discriminatory acts within our military. The only independent organization with the legal capacity to assist LGB active duty troops is SLDN. These probable instances will require legal assistance similar to that provided by SLDN to over 11,000 service members before repeal of DADT.
What about our transgendered brothers and sisters? While DADT did not directly impact them, they are still prevented by medical regulations from enlisting or transitioning while on active duty. Who will work to remedy this injustice? SLDN has been providing assistance to the transgender community for years and is committed to do so in the future.
We had an incomplete vision 17 years ago when we thought SLDN’s work would be done the day repeal of DADT became effective. Clearly, to abandon the field when so many LGBT servicemembers would still need help would be irresponsible. Just like in combat, we don’t leave our people behind.
SLDN will continue to provide quality legal services and monitor effective implementation during this period of transition and into the foreseeable future. SLDN will remain the 911 to those service members who do not find an even playing field and are not treated justly with dignity and respect.
Think of it this way: when the Civil Rights Act of 1964 passed, it did not eliminate the need for the NAACP or any other civil rights watchdog group. Rather, the intervening years have taught us that as long as there is bigotry, discrimination and harassment, we must be vigilant and continue the fight for equality. SLDN’s mission to achieve full equality and justice continues.
The opinions expressed here at those of attorney and former Marine Capt. Tom Carpenter alone and are not made in his capacity as an SLDN board member.