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United States: Sexual minorities in the military, including legislatives changes

Publisher Canada: Immigration and Refugee Board of Canada
Publication Date 3 February 2012
Citation / Document Symbol USA103967.E
Related Document États-Unis : information sur les minorités sexuelles au sein de l'armée, y compris sur les changements apportés à la loi
Cite as Canada: Immigration and Refugee Board of Canada, United States: Sexual minorities in the military, including legislatives changes, 3 February 2012, USA103967.E, available at: http://www.refworld.org/docid/4f5f3ae82.html [accessed 27 December 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

1. Background

From 1993 to September 2011, the United States (US) military was governed by a policy of "don't ask, don't tell" (DADT) (Macon.com 10 Jan. 2012; US 20 Sept. 2011; Reuters 19 Sept. 2011), which prevented homosexual men and women from openly declaring their sexual orientation while serving in the American armed forces (Macon.com 10 Jan. 2012; Reuters 19 Sept. 2011). Reuters reports that more than 13,000 service members were expelled from the US military during the period that DADT was in force (19 Sept. 2011). Similarly, data from Servicemembers United, an advocacy group for gay and lesbian members of the military (n.d.a), says there were 14,055 expulsions pursuant to the policy (n.d.b).

2. Repeal of Don't Ask, Don't Tell

In December 2010, President Barack Obama signed a repeal of DADT into law (Macon.com 10 Jan. 2012; AP 28 Nov. 2011; Reuters 19 Sept. 2011). As a requirement of the repeal, military leaders needed to provide official certification that the repeal would not harm the readiness of military forces (Macon.com 10 Jan. 2012; Pink News 28 Apr. 2011). Following certification, a 60-day waiting period then had to pass (Macon.com 10 Jan. 2012; Pink News 28 Apr. 2011). On 20 September 2011, the repeal of DADT came into force (US 11 Jan. 2012; Military.com 24 Nov. 2011; Reuters 19 Sept. 2011).

Before the repeal of DADT came into force, members of the military received training regarding the change of policy and its implementation (US 11 Jan. 2012; Reuters 19 Sept. 2011; Pink News 28 Apr. 2011). The American Forces Press Service reported that the mandatory training emphasized that sexual orientation was not a reason for an individual to not be able to serve in the military, and that all service members deserved to be treated with dignity and respect (US 20 Sept. 2011). According to Reuters, "nearly" all service members had received this training as of September 2011 (19 Sept. 2011).

3. Treatment of Sexual Minorities During and Following DADT Repeal

Sources report that there has been little trouble in implementing the repeal of DADT (AP 28 Nov. 2011; Military.com 24 Nov. 2011). An article published by Military.com, a website dedicated to issues and news related to the American armed forces, quotes the Executive Director of Servicemembers United as saying that there had been very few reports of complaints with regard to the repeal of DADT (ibid.). According to the article, the Executive Director explained that those who are revealing their sexuality "'are really expressing a lot of surprise at how well they are received'" (ibid.). However, sources note that "many" gay and lesbian service members have chosen to not openly reveal themselves (US 11 Jan. 2012; Military.com 24 Nov. 2011). An article on the website of the US Army also says that gay and lesbian soldiers have noticed little change in the "culture" of that branch of the armed services since the repeal (US 11 Jan. 2012).

The Marines were reportedly seen as being the most reluctant American service members to accept the repeal of DADT (Washington Blade 17 Nov. 2011; Pink News 28 Apr. 2011). However, in an interview with the Associated Press, the commanding officer of the Marine Corps, described as "the face of opposition in the military" to the repeal of DADT due to his having expressed concerns that a repeal would harm the readiness of the military, stated that the Marine Corps had "embraced" the change in policy and that he was not aware of any problems in the implementation of the repeal (28 Nov. 2011). Sources note that same-sex couples were welcomed at the Marine Corps Ball in November 2011 (AP 28 Nov. 2011; Washington Blade 17 Nov. 2011). The Washington Blade, a Washington, DC publication that focuses on news relating to the lesbian, gay, bisexual and transgender (LGBT) community (n.d.), reported that same-sex couples also attended other social events for Marines without incident (17 Nov. 2011).

Despite the repeal of DADT, gay and lesbian service members are not entitled to all the same benefits as their heterosexual counterparts (Military.com 24 Nov. 2011; HRC 27 Oct. 2011; US 20 Sept. 2011; SLDN n.d.a). Sources explain that some of these benefits are blocked by laws that bar same-sex spouses from receiving federal benefits (Military.com. 24 Nov. 2011; HRC 27 Oct. 2011; US 20 Sept. 2011; SLDN n.d.a). According to the Human Rights Campaign (HRC), an American advocacy group that works on behalf of LGBT individuals (n.d.), some of the "impacted" benefits are

military family housing, access to legal services, spousal relocation support, medical and dental benefits, military ID cards, visitation rights in military hospitals, survivor benefits and the right to be buried together in military cemeteries. (27 Oct. 2011)

However, the Military.com article notes that, according to the Defense Department, there are 14 military benefit programs that allow members of the military to designate any beneficiary without consideration of sexual orientation (24 Nov. 2011). The article also notes that homosexual service members were already eligible for these programs before the repeal of DADT, although they hesitated to list their same-sex partners for fear of revealing themselves (Military.com 24 Nov. 2011). A lawsuit has been filed on behalf of same-sex spouses asking for the equal distribution of all military benefits on constitutional grounds (ibid.; HRC 27 Oct. 2011).

The HRC states that there continue to be other issues of concern regarding sexual minorities in the US military following the repeal of DADT:

For example, some service members discharged under DADT wrongly received dishonorable discharges that the government has yet to remedy; many must carry discharge documentation that subjects them to the risk of employment discrimination because the documents reveal their sexual orientation; and others face recoupment efforts by the government for debts incurred as a result of incomplete service (e.g., enlistment bonuses and tuition fees). (HRC 29 Sept. 2011)

In addition, the HRC states that "open service for transsexual, intersex and transgender service members is still denied" (ibid. 22 Sept. 2011). According to the Servicemembers Legal Defense Network (SLDN), "being transgender is considered a medically disqualifying condition" (SLDN n.d.b).

Advocates also express concern over the Uniform Code of Military Justice (UCMJ) (HRC 20 Sept. 2011; SLDN n.d.c). According to the HRC, Article 125 of the UCMJ "criminalizes intimacy between same sex-couples" and should be repealed (HRC 20 Sept. 2011). The SLDN expresses concern that, with the repeal of DADT, commanding officers could resort to misapplying the UCMJ to force the expulsion of lesbian, gay and bisexual service members (SLDN n.d.c).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Associated Press (AP). 28 November 2011. Robert Burns. "Don't Ask Don't Tell: Top Marine Says Service Embracing Gay Ban Repeal." [Accessed 17 Jan. 2012]

Human Rights Campaign (HRC). 27 October 2011. Dan Rafter. "Service Members Legal Challenge to DOMA." [Acccessed 17 Jan. 2012]

_____. 29 September 2011. Ty Cobb. "Court Finds DADT Challenge Moot." [Acccessed 17 Jan. 2012]

_____. 22 Sepember 2011. Meghan Stabler. "DADT Repealed, But the Fight Is Not Over." [Acccessed 17 Jan. 2012]

_____. 20 September 2011. "Don't Ask, Don't Tell Repeal Act of 2010." [Acccessed 17 Jan. 2012]

_____. N.d. "About Us." [Accessed 24 Jan. 2012]

Macon.com. 10 January 2012. Wayne Crenshaw. "Robins Base Command Chief: Repeal of Policy on Gays No Issue." [Accessed 17 Jan. 2012]

Military.com. 24 November 2011. Tom Philpott. "Gays Seek Benefit Equality." [Accessed 17 Jan. 2012]

Pink News. 28 April 2011. Jessica Geen. "US Marines Begin Training to Accept Gay Soldiers." [Accessed 16 Jan. 2012]

Reuters. 19 September 2011. "Don't Ask, Don't Tell for Military Gays Runs Out." [Accessed 13 Jan. 2012]

Servicemembers Legal Defense Network (SLDN). N.d.a. "Benefits and Pay." [Accessed 18 Jan. 2012]

_____. N.d.b. "Transgender Service." [Accessed 18 Jan. 2012]

_____. N.d.c. "The Uniform Code of Military Justice (UCMJ)." [Accessed 18 Jan. 2012]

Servicemembers United. N.d.a. "Mission." [Accessed 24 Jan. 2012]

_____. N.d.b. "DADT Discharges by Fiscal Year 1994-2009." [Accessed 17 Jan. 2012]

United States (US). 11 January 2012. United States Army. "Soldiers, NCOs Maintain Professionalism Throughout Repeal of 'Don't Ask, Don't Tell'." [Accessed 17 Jan. 2012]

_____. 20 September 2011. American Forces Press Service. "Officials Expect Smooth 'Don't Ask, Don't Tell' Repeal." [Accessed 17 Jan. 2012]

Washington Blade. 17 November 2011. Chris Johnson. "A Night to Remember." [Accessed 17 Jan. 2012]

_____. N.d. "About." [Accessed 24 Jan. 2012]

Additional Sources Consulted

Publication: "Don't Ask, Don't Tell": A Legal Analysis.

Internet sites, including: American Military Partner Association, Amnesty International, European Country of Origin Information Network, Family Research Council, GlobalGayz.com, Human Rights Watch, OpenServe, United Nations Refworld.

Copyright notice: This document is published with the permission of the copyright holder and producer Immigration and Refugee Board of Canada (IRB). The original version of this document may be found on the offical website of the IRB at http://www.irb-cisr.gc.ca/en/. Documents earlier than 2003 may be found only on Refworld.

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