One Year On: 'Don’t Ask, Don’t Tell' Repeal Leaves More Work To Be Done

November 8, 2012

Shannon McLaughlin shows a brave face watching TV news coverage of conflicts around the world. The 42-year-old U.S. Army Major knows that her country’s military involvement could have far-reaching consequences for her family. McLaughlin’s wife is excluded from receiving spousal benefits from the government.

“A dangerous deployment is a real possibility for me,” says McLaughlin, an Army attorney (known formally as a Judge Advocate General). “My family would lack the support that other military families are offered and those families depend on.”

Although she married her wife in Massachusetts in 2009, McLaughlin is blocked from attaining health or life insurance for her wife through the military due to the federal Defense of Marriage Act (DOMA). The act’s definition of marriage as a man-woman union guides the military when determining spousal benefits.

McLaughlin is also ineligible for time off should her wife fall ill, and in the event of McLaughlin’s death, her mother would be the first to be notified and her wife would not receive the standard “death gratuity.” When the Army offers family-strengthening programs to lower the divorce rate and prevent suicide among service members, it excludes gay families.

Lack of family benefits for some members of a unit is directly connected to its readiness and ability to deploy,” says McLaughlin, a plaintiff in McLaughlin vs. Panetta—a case brought by the Servicemembers Legal Defense Network and one of several court cases challenging DOMA that could be headed for the Supreme Court.

In October 2012, the Court of Appeals for the Second Circuit in New York struck down the law as unconstitutional. In February 2011, President Obama instructed the U.S. Department of Justice to stop stopped defending the law in court. A federal appeals court in Boston upheld a similar decision in May 2010.

The Supreme Court is expected to hear at least one of several recent cases challenging DOMA during its current term, and its ruling could decide the fate of same-sex marriage in the U.S.

DADT: Before and After Repeal

After 10 years of hiding her sexual orientation under the 1993 federal Don’t Ask, Don’t Tell (DADT) policy – which prohibited U.S. military service by open gays and lesbians – McLaughlin was accused by a general in 2008 of being a lesbian and subjected to an investigation.

Until the 10-month inquiry was dropped, McLaughlin was blocked from receiving awards, from being transferred to another unit, and from attending military training—all of which were necessary for promotion.

More than one year after DADT’s September 20, 2011, repeal, a study has confirmed that the open presence of gay, lesbian, and bisexual military personnel has not affected the armed services in any significant way.

“DADT repeal has had no overall negative impact on military readiness or its component dimensions, including cohesion, recruitment, retention, assaults, harassment, or morale,” according to the report, released by the Michael Palm Center at the University of California, Los Angeles, School of Law.

Scores of Palm Center interviewees who took part in the six-month study revealed that any downsides to the repeal—such as a reduction in morale among some servicemembers who had opposed the change—were balanced if not outweighed by greater openness, honesty, and acceptance within units that included LGB members.

An annual Military Times poll conducted soon after the repeal, in January 2012, found a similar effect: 74 percent of service members said that the repeal had no impact on their unit, and 69 percent said it had no impact on them personally. Those statistics held for the nearly one-fifth of respondents who said that someone in their unit had disclosed being gay.

Fight for Equality Persists

While it is a huge relief to know that her job is safe, McLaughlin believes that the potential for discrimination and inability for families to attain military benefits create a two-class system.

“A lot of soldiers, marines, and airmen are still reluctant to come out, because the repeal just says that I can’t lose my job for being gay. It doesn’t protect me from not getting promoted, receiving a poor evaluation, or getting an undesirable assignment because I’m gay.”

Her view is echoed by Petty Officer First Class Jeremy Johnson, 35, who had resigned in 2007, on the eve of a promotion, but re-enlisted in the Navy as soon as DADT’s repeal allowed him to serve with self-honesty.

“Gay and lesbian service members who are harassed can only hope to take their complaints up the chain of command to seek resolution,” Johnson says. “But when the problem is their chain of command, they are limited in their options.”

“Some are waiting until the person causing the problem transfers, or they themselves move on to another assignment. In the meantime, they endure the circumstances as if DADT were still in force.”

Although Congress opted not to include a nondiscrimination clause in the DADT repeal, the same result would be accomplished without legislation if the president and Department of Defense were to issue regulations or rules preventing such discrimination within the service.

“The country has gone through an incredible change since the enactment of DADT,” says James Esseks, director of the American Civil Liberties Union (ACLU) Lesbian, Gay, Bisexual, Transgender & AIDS Project. “While not all gay service members feel they can be open, when people make the choice to be open they may find a more accepting environment than they expected.”

The ACLU is preparing for trial in a class-action case, Collins vs. United States, that seeks retroactive pay for nearly 150 people who were discharged under DADT following at least six years of service.

Due to an obscure rule from the DADT era, these service members—dismissed for “homosexuality”—were entitled to only half the severance pay to which other honorably discharged service members were entitled.

These days, McLaughlin, as an Army attorney, drafts wills, powers of attorney, and health care proxies to protect the families of other U.S. Army soldiers who are to be deployed. She hopes that one day she may attain these services for herself and her own spouse.

“The repeal is wonderful, but there is still much work to be done, through the courts or through legislation,” she says. “Making sure we have an anti-discrimination policy and making sure that we treat all military families equally—those goals are of paramount importance for families like mine.”