DADT Report recommendations
November 30th, 2010
The Pentagon has released the report of its survey of servicemembers and their families. You can find it here (pdf – 267 pages).
We’ll discuss the findings separately, but here are my impressions about the recommendations:
This Report is welcomed. It will probably contribute positively to the repeal of DADT. But it is far from an endorsement of equal treatment for gay people.
The objective of this Report seems to be to find a way to accommodate gay servicemembers while simultaneously making sure not to equate gay relationships to those of heterosexuals. The presumption from the outset is that heterosexuals are justified in seeing homosexuality as inferior, but that the Military can find ways to tolerate this peculiarity. Parts of it read a bit like a conversion from “Don’t Ask, Don’t Tell” to “We’d rather not hear, so don’t bother telling”.
Or, at least in terms of pragmatic application, it accepts those parameters as reasonable.
Motivating many of our recommendations is the conclusion, based on our numerous engagements with the force, that repeal would work best if it is accompanied by a message and policies that promote fair and equal treatment of all Service members, minimize differences among Service members based on sexual orientation, and disabuse Service members of any notion that, with repeal, gay and lesbian Service members will be afforded some type of special treatment.
By “special treatment”, they mean equal treatment.
1. The recommendation of the Report is not that the repeal be treated in a manner similar to that of the integration of race. Rather, special deference should be given to those who object to equal treatment:
Throughout the force, rightly or wrongly, we heard both subtle and overt resentment toward “protected groups” of people and the possibility that gay men and lesbians could, with repeal, suddenly be elevated to a special status.
Therefore, in the event of repeal, we do not recommend that the Department of Defense place sexual orientation alongside race, color, religion, sex, and national origin as a class eligible for various diversity programs, tracking initiatives, and the Military Equal Opportunity program complaint resolution processes. Instead, the Department of Defense should make clear that sexual orientation may not, in and of itself, be a factor in accession, promotion, or other personnel decision-making. Gay and lesbian Service members, like all Service members, would be evaluated only on individual merit, fitness, and capability. Likewise, the Department of Defense should make clear that harassment or abuse based on sexual orientation is unacceptable and that all Service members are to treat one another with dignity and respect regardless of sexual orientation. Complaints regarding discrimination, harassment, or abuse based on sexual orientation would be dealt with through existing mechanisms available for complaints not involving race, color, sex, religion, or national origin—namely, the chain of command, the Inspector General, and other means as may be determined by the Services.
As we’ve seen with anti-bullying campaigns that exclude a “sexual orientation” category, this will be likely seen as an indication that the Military does not consider discrimination against gay people to be as insidious as that based on race or religion. It will invite continued discrimination.
2. The study opposes any collection or retention of data for tracking whether the integration of gay people into the military is effective.
We recommend against creating a data category for Service member sexual orientation; in the event Don’t Ask, Don’t Tell is repealed, we recommend that the Department of Defense continue the practice of not asking Service members or recruits to identify their sexual orientation.
3. However, the Report sees no necessity to revise policies to address the fears about “homosexual behavior”:
We believe it is not necessary to set forth an extensive set of new or revised standards of conduct in the event of repeal. Concerns for standards in the event of repeal can be adequately addressed through training and education about how already existing standards of conduct continue to apply to all Service members, regardless of sexual orientation, in a post-repeal environment.
We do recommend, however, that the Department of Defense issue generalized guidance to the Services that all standards of personal and professional conduct must apply uniformly without regard to sexual orientation. We also recommend that the Department of Defense instruct the Services to review their current standards of personal and professional conduct to ensure that they are neutral in terms of sexual orientation and provide adequate guidance to the extent each Service considers appropriate on unprofessional relationships, harassment, public displays of affection, and dress and appearance. Part of the education process should include a reminder to commanders about the tools they already have in hand to remedy and punish inappropriate conduct that may arise in a post-repeal environment.
4. Nor do they recommend any changes in their chaplain policies. If atheists, Christians, Jews, and Muslims can serve together peaceably, so too can those of varying view about homosexuality and sin.
5. Article 125, which bans “sodomy”, should be repealed:
Article 125 of the UCMJ treats all acts of sodomy, heterosexual, homosexual, consensual, or otherwise, as punishable conduct. In Lawrence v. Texas, the Supreme Court held that private consensual sodomy between adults cannot be considered a crime. The U.S. Court of Appeals for the Armed Forces reached a similar conclusion in the military context in the case United States v. Marcum. In light of these decisions, we recommend that Article 125 be repealed or amended to the extent it prohibits consensual sodomy between adults, regardless of sexual orientation. The other prohibitions considered punishable under Article 125, including forcible sodomy, sodomy with minors and sodomy that is demonstrated to be “service discrediting” (e.g., in public or between a superior and subordinate), should remain on the books.
6. While soldiers (and civilian anti-gay activists) were quite concerned about sharing rooms with, gasp, a homosexual, 38% of them think that they already have. The Report takes a somewhat pragmatic approach.
Accordingly, we recommend that the Department of Defense expressly prohibit berthing or billeting assignments based on sexual orientation, except that commanders should retain the authority to alter berthing or billeting assignments on an individualized, case-by-case basis, in the interest of maintaining morale, good order, and discipline, and consistent with performance of mission.
In other words, don’t segregate. But if it’s going to cause havoc for Billy Bob to have to room with the gay guy, then assign him to someone who isn’t a raging homophobe. And, from what the rest of the Report suggests, it shouldn’t be that much of a problem most of the time.
7. The Report completely dismisses the Oh Noes! There’s a Ghey! in my Shower! fears:
Here again, we are convinced that separate bathroom facilities would do more harm than good to unit cohesion and would be impracticable to administer and enforce. Concerns about showers and bathrooms are based on a stereotype—that gay men and lesbians will behave in an inappropriate or predatory manner in these situations. As one gay former Service member told us, to fit in, co-exist, and conform to social norms, gay men have learned to avoid making heterosexuals feel uncomfortable or threatened in situation such as this. The reality is that people of different sexual orientation use shower and bathroom facilities together every day in hundreds of thousands of college dorms, college and high school gyms, professional sports locker rooms, police and fire stations, and athletic clubs.
Accordingly, we recommend the Department of Defense expressly prohibit the designation of separate facilities based on sexual orientation, except that commanders retain the authority to adjudicate requests for accommodation of privacy concerns on an individualized, case-by-case basis in the interest of maintaining morale, good order, and discipline, and consistent with performance of mission. It should also be recognized that commanders already have the tools—from counseling, to non-judicial punishment, to UCMJ prosecution—to deal with misbehavior in both living quarters and bathing situations, whether the person who engages in the misconduct is gay or straight.
8. Because of the Defense of Marriage act, the Report recommends that the relationships of gay people be considered much like they would a cousin or bowling buddy. In those instances where a servicemember can include a non-spouse as a beneficiary (for example, life insurance) the Military should advise gay member of that right, but otherwise federal law restricts it from changing anything.
That the Department of Defense and the Services not, at this time, revise their regulations to specifically add same-sex committed relationships to the definition of “dependent,” “family members,” or other similar term in those regulations, for purposes of extending benefits eligibility, but that this particular issue be revisited as part of a follow-on review of the implementation of a repeal of Don’t Ask, Don’t Tell.
For some benefits, such as access to legal services, they see two possible approaches: “leave to the Service member the freedom to designate his or her “dependents,” “family members,” or similar term; or, revise these definitions to specifically mention a committed, same-sex relationship, and require some type of proof of that committed relationship.”
It keeping with its general concession to the superiority of heterosexuality, the recommend that same sex couples not be treated as a relationship but as a designee.
Our recommendation is that the Department of Defense and the Services review benefits in this category and assess whether they can be extended to same-sex partners in accordance with the former approach—that is, to refashion the benefit to become a “member-designated” one. Where it is legally permissible to do so under current statutory definitions, and where justified by policy, fiscal, and feasibility considerations, DoD should redefine the eligibility criteria for benefits in this category to allow Service members—gay or straight—to designate a beneficiary of their choosing, which could be a same-sex partner.
Or, of course, a bowling partner.
But as for the biggie, Military housing, gay servicemembers don’t deserve this benefit.
We do not, however, recommend that military family housing be included in the benefits eligible for this member-designated approach. Permitting a Service member to qualify for military family housing, simply by designating whomever he chooses as a “dependent,” is problematic. Military family housing is a limited resource and complicated to administer, and such a system would create occasions for abuse and unfairness.
Also, we do not, at this time, recommend that the Department of Defense and the Services revise their regulations to specifically add same-sex committed relationships to the definition of “dependent,” “family member,” or other similar term, for purposes of extending benefits eligibility. We realize this is different from the direction the Federal government is taking for civilian employees to address the disparity in benefits available to married opposite-sex relationships and committed same-sex relationships. However, we believe that, in the short-term, immediately following a repeal of Don’t Ask, Don’t Tell, our recommended approach is justified in the military context, for several reasons.
Because, you see, allowing legally married gay couples (whose marriage is ignored by the Federal Government) to have housing rights would be unfair to heterosexual couples who are legally allowed to marry but choose not to. Cuz they’re both “unmarried” couples in the eyes of the Feds.
And straight servicemembers would resent it if gay people were treated equally.
In addition, benefits play a much larger role in day-to-day military life, than in Federal civilian agencies. For the military, “benefits” cover many aspects of day-to-day life, including on-base housing, housing allowances, family support programs, and commissary and base exchange shopping privileges, and provide other valuable forms of assistance, like family separations allowances, space-available travel, and relocation assistance. We know from our numerous engagements of the force that resentment at perceived inequities runs deep in military families.
9. For duty assignments, the Report recommends a similar “not a real couple, but maybe we’ll be nice” approach:
As it relates to the treatment of Service members with committed same-sex partners, the topic of duty assignments—both for overseas assignments and for co-location of dual military couples—presents many of the same issues discussed in the previous section on benefits. As such, our recommendation and the reasons for it are similar. In short, we recommend that the Department of Defense and the Services not, at this time, rewrite their regulations to specifically accommodate same-sex committed relationships for purposes of duty assignments. However, gay and lesbian Service members in committed relationships— with either a civilian or a military partner—should be able to make an individualized, hardship-based request for accommodation in assignment.
10. The Report dismisses concerns about an increased risk of HIV in the blood supply. Interestingly, it does so based on a source I’d not considered:
The Surgeons General of each of the military departments have drafted and signed a joint letter to the Working Group stating that:
“The repeal of 10 U.S.C. § 654 will not affect the medical readiness of the Armed Forces. Further, repeal of Don’t Ask, Don’t Tell will not require a change to any medical policies. The Department of Defense has policies and procedures to protect the health of the force to include the prevention of diseases such as human immunodeficiency virus (HIV) transmission.”
11. The Report supports reenlistment of those dismissed under DADT:
In the event of repeal, we recommend that the Department of Defense issue guidance to the Services permitting Service members previously separated on the basis of homosexual conduct to be considered for re-entry, assuming they qualify in all other respects.
12. The Report recommends that those who would rather quit than work with a gay person not be accommodated in their bigotry. And as for the mad rush of good Southern boys refusing to reenlist with Teh Gheys, they find it not very likely: “the Working Group expects recruiting and retention expenses related to repeal to be negligible.”
There is much to be applauded in this report. And there is also clearly a ways we have yet to go to be considered real people with worth and value equal to heterosexuals.
(p.s. In looking back on earlier concerns, the recommendations in this Report have proven to be far better than I expected)