NYCLU Strongly Supports Calling on the President, Congress, and the DOD to Rescind Don’t Ask Don’t Tell

On behalf of the New York Civil Liberties Union (“NYCLU”), I present testimony this afternoon concerning Proposed Res. 1170-A, which calls on the President, Congress, and the Department of Defense (“DOD”) to rescind the “Policy concerning homosexuality in the armed forces,” known as “Don’t Ask, Don’t Tell, Don’t Pursue” (“DADT”), 10 U.S.C. § 654.

By way of background, the NYCLU is the New York State affiliate of the American Civil Liberties Union (“ACLU”), and has approximately 48,000 members across New York State. The NYCLU is devoted to the protection and enhancement of those fundamental rights and constitutional values embodied in the Bill of Rights of the United States Constitution and the Constitution of the State of New York and long has worked on issues concerning privacy, personal autonomy, freedom of speech and expression, and the eradication of discrimination. Given that New York State has the fourth highest number, and New York City the fifth highest number, of gay and lesbian veterans across other states and metropolitan areas, respectively¹, the NYCLU commends the City Council for taking a stand on this issue that is important to so many New Yorkers.

As an organization dedicated to preserving civil liberties and enforcing civil and constitutional rights, the NYCLU is opposed to DADT for a number of reasons. Among DADT’s most disturbing attributes is that it is a vague policy that strips lesbian, gay, bisexual and transgender (“LGBT”) service members of fundamental rights and liberty interests. The following passage demonstrates the real-life impacts of DADT on many service members.

Imagine hesitating every time a fellow service member asks about weekend plans. Imagine not being able to commit legally to your partner without fear of losing your career. Imagine not being able to enroll the child you adopted with your same-sex partner on your health care plan without fear of discovery. Imagine not being able to name your same-sex partner as a recipient on your life insurance without inviting scrutiny. Imagine not being able to have a picture of your family on your desk at work. The simplest, seemingly innocent act can spell discharge for the gay service member; their service mandates the sacrifice of silence.

Kathi Westcott & Rebecca Sawyer, Silent Sacrifices: The Impact of “Don’t Ask, Don’t Tell” on Lesbian and Gay Military Families, 14 Duke J. Gender L. & Pol’y 1121, 1121-22 (2007)².

According to its language, DADT prevents each service member from: (1) “engag[ing] in, attempt[ing] to engage in, or solicit[ing] another to engage in a homosexual act;” (2) “stat[ing] that he or she is a homosexual or bisexual, … unless … the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts;” (3) or “marr[ying] or attempt[ing] to marry a person known to be of the same biological sex.” 10 U.S.C. § 654(b)(1)-(3). The policy is allegedly based on the need to achieve unit cohesion because some service members might be homophobic³.

As the ACLU has argued, DADT violates the Fifth Amendment’s Due Process Clause because it strips LGBT service members of fundamental rights and liberties, including the right to form intimate relationships, and to personal autonomy and privacy. As recent as 2003, the U.S. Supreme Court has recognized that lesbian and gay individuals are just as deserving of these rights and liberties as their straight counterparts⁴. Likewise, DADT violates the First Amendment because it vaguely describes conduct that could suggest a service member is not heterosexual or straight. DADT’s very terms violate LGBT service members’ rights to freedom of speech and expression as well as their right to privacy and all of the protections associated with these rights.

LGBT service members cannot speak about their romantic relationships, engage in intimate conduct, or ever seek benefits for their loved ones. While the rights to engage in intimate relationships and speak openly about one’s own orientation are constitutionally protected for many others, DADT forces LGBT service members to surrender these rights in order to keep their jobs. Banning LGBT service members from exercising their fundamental rights because of the putative homophobia that could theoretically disrupt unit cohesion does not constitute a rationally based policy. Furthermore, recent reports indicate that many service members have served openly without any disruption to unit cohesion⁵.

To discriminate against an entire group of individuals, who dedicate their lives to protecting our freedoms, from exercising their fundamental rights is nothing less than hypocritical and shameful. It also violates the Fifth Amendment’s guarantee of equal protection. All service members already sacrifice a great deal of privacy and personal autonomy. However, DADT goes further and punishes LGBT service members by imposing only upon them the additional liberty-restrictive burdens discussed above.

Even more upsetting is the fact that DADT punishes service members’ families. The partners and children of LGBT service members must remain in the shadows to protect these service members from discharge. In doing so, they are denied important medical, survivor and financial benefits that family members of straight service members receive without risk⁶. Why should the child of an individual serving in our military lack health insurance because her mother or father is not straight?

In addition, service members discharged under DADT face the possibility of employment discrimination even after leaving the military. The military’s discharge form, “DD 214,” marks those discharged under DADT as “homosexual” on the form. Because many non-military employers require submission of a discharged service member’s DD 214 form, those service members discharged under DADT are permanently outed as “homosexual” when applying for jobs. While employers are prohibited in New York from inquiring about employees’ sexual orientation, DADT makes it possible for employers to know without ever asking, which can lead to impermissible anti-LGBT discrimination.

Furthermore, the NYCLU is especially concerned with DADT’s effects on youth. Bolstering the NYCLU’s already strong opposition to the overwhelming presence of military recruiters in our schools is the fact that these recruiters, simply by being associated with the military and its discriminatory policy, are spreading an anti-LGBT message to our youth – LGBT, questioning and straight alike. These individuals, still in their formative years, are the most vulnerable to being dehumanized by DADT’s anti-LGBT message. DADT legitimizes homophobic attitudes and tells our LGBT and questioning youth that they must repress their sexual orientation if they are to obtain the attractive opportunities of a military career. Telling a child or young adult that she only has access to these opportunities if she is straight is unconscionable. While New York City has a long history of providing equal opportunities for all of its LGBT residents, having our youth recruited by a discriminatory employer, in our own schools, completely undermines that history.

Finally, putting aside DADT’s constitutional flaws, discriminatory effects, and detrimental impact on our youth, the NYCLU notes that DADT is simply a bad and ineffective policy. Statistics demonstrate that the military spends hundreds of millions of dollars recruiting service members to replace those discharged under DADT⁷. Not only are extra funds wasted on recruiting, but highly qualified service members with specialized language skills allegedly have been banned from serving simply because some service members might be homophobic⁸. And DADT only nurses the existence of sexual harassment of women serving in the military by legitimizing the bating of women perceived to be lesbians. Wasting valuable resources to enforce a policy aimed at protecting homophobia should strike any policymaker as a bad idea. Lastly, given that so many other nations allow their service members to serve openly as LGBT people, DADT should be an embarrassment to the United States.

In sum, the NYCLU strongly supports calling on the President, Congress, and the DOD to rescind DADT. All service members should be allowed to serve without having to sacrifice their fundamental rights. Further, having a policy that singles out only LGBT service members is harmful not only to the service members themselves, but also to their families and children, and to potential military recruits. Wasting money and precious military resources based on the fear that homophobia will trump professionalism is poor policy, as is lagging far behind other nations in recognizing the value of all its service members – straight and LGBT. Therefore, the NYCLU strongly supports Proposed Res. 1170-A and the City Council’s efforts to help rescind DADT so that LGBT people can serve openly in the military.

Footnotes

¹ Gary J. Gates, Gay Men and Lesbians in the U.S. Military: Estimates from Census 2000, The Urban Institute, Sept. 28, 2004, at Table 13, www.urban.org/UploadedPDF/411069_GayLesbianMilitary.pdf.

² At www.law.duke.edu/shell/cite.pl?14+Duke+J.+Gender+L.+&+Pol’y+1121.

³ See Able v. United States, 155 F.3d 628, 635 (2d Cir. 1998).

⁴ See Lawrence v. Texas, 539 U.S. 558, 564 (2003).

⁵ For instance, although Army Sgt. Darren Manzella came out as gay to his military superiors in August 2006, he has continued to serve successfully since then and no military personnel have yet initiated an investigation into his sexual orientation. See Suzanne Gamboa, Soldier: Policy on Gays May Be Shifting, Associated Press, Jan. 8, 2008, http://ap.google.com/article/ALeqM5iusf0qzmyeUxdw-9g2DKh42LzkNwD8U21P1O0.

⁶ See generally Westcott & Sawyer, Silent Sacrifices, supra (thoroughly reviewing all of the partner and family benefits unavailable to LGBT service members’ family members and noting that repealing DADT is the first step in bringing equality to the military).

⁷ John Files, Rules on Gays Exact a Cost in Recruiting, a Study Finds, New York Times, Feb. 24, 2005, www.nytimes.com/2005/02/24/politics/24gays.html.

⁸ Id. (“The investigators also said they could not quantify the cost of losing personnel discharged after having been trained in certain areas of expertise like intelligence or languages like Arabic, Chinese, Farsi or Korean.”)