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GAY PEOPLE'S CHRONICLE JANUARY 14, 1994

Gays and lesbians in the military: About-face

Continued from Page 1

The race was on to present a presidential policy before the Congress could codify "don't ask, don't tell" into law. Support for the Clinton plan was strong in Ohio. Sen. Howard Metzenbaum had introduced a bill in January to prohibit discrimination by the armed services based on sexual orientation. While Sen. John Glenn was not as forthcoming in his support as Metzenbaum, he did support the 6-month compromise and "zero tolerance" for violence perpetrated by service members against gays. Area congressional representatives followed general party lines, with Democrats Louis Stokes, Sherrod Brown and Eric Fingerhut in support of lifting the ban and Republican Martin Hoke against.

While activists had originally been accused of being slow out of the gate, efforts to garner support from the gay community gained speed, though never equal to the overwhelming amount of support for the ban that congressional leaders claimed they heard. The Campaign for Military Service, a new ad hoc national lesbian and gay organization made up of activists and exmilitary personnel, conducted its own crosscountry, 34 city publicity tour, beginning in mid-March and ending April 25 at the March on Washington. Gay service members past and present were the featured speakers.

Senate hearings, chaired by conservative Democrat Sen. Sam Nunn of Georgia who personally favored maintaining the ban, were notable for the way they were staged. Witnesses seeking to keep gays and lesbians out were in the majority, though they had little concrete evidence to support their view. Few witnesses were invited to present testimony about the far more credible studies and experience that recommended lifting the ban. Nunn continued his opposition to

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the President's plan with a plan of his own, a tougher version of "don't ask, don't tell," one aimed at discouraging gay enlistment. The idea quickly gained support within the divisive Democratic party. On May 15 Rep. Barney Frank, D-Mass., introduced his own compromise, "don't ask, don't tell, don't listen and don't investigate," allowing for more freedom off-duty, but still demanding closets while on-duty. Needless to say, the idea met with much criticism from within the gay community

On July 19 President Clinton announced his new policy, basically an elaboration on "don't ask, don't tell." While service personnel were to no longer be judged on orientation but on conduct, and new recruits would not be asked questions about sexual orientation, a confusing provision was added that stated: "A person openly stating homosexuality will establish the 'rebuttable intention' to engage in prohibitive activities, and be subject to discharge. However, the person will be given the chance to refute that intention." Additional explanations showed that gay personnel would have to refrain from sex both on duty and off, and must be able to refute all accusations or be discharged, thereby shifting the burden of proof onto the accused service member. Activists criticized the plan as no better than the previous policy and a failure at protecting gays from discrimination.

However, with the November 5 approval by House and Senate negotiators of a $261 billion defense budget, lawmakers found ample opportunity to tighten the reins on Clinton's policy. A more restrictive plan was created, one that left open the possibility for a future defense secretary to reinstate sexual orientation questioning of recruits. No mention was made that sexual orientation is not a bar to a military career. Instead, gay or lesbian orientation was

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branded an "unacceptable risk to morale and discipline." There was also no language indicating an end to witch-hunts. The administration accepted the legislation, even labeling it "fully consistent" with its own policy. It was signed by Clinton on September 28 with little fanfare.

Full court press

While the legislative and executive branches may not have been the site of many wins for the gay community, it was the courtroom that offered the most hope for gay servicemembers. Two celebrated cases centered around Navy Petty Officer Keith Meinhold and midshipman Joseph Steffan.

Meinhold had been discharged from the Navy in August 1992 after disclosing on national television that he is gay. In January 1993 Judge Terry Hatter, Jr. had ruled that the ban was unconstitutional and that Meinhold should be reinstated. But come September, the ban was still in effect. Hatter then broadened his ruling September 30 to prevent the military from denying enlistment or promotion, or changing someone's enlistment status because of sexual orientation. A month-long halt of the ban followed while appeals were made to the Supreme Court, which ruled that since the case had not been filed as a class action, Hatter's ruling would only apply to Meinhold. By the end of October the ban was back in place.

Meinhold recently re-enlisted for another two years, while his case is being heard by the 9th U.S. Circuit Court of Appeals.

Six years following his withdrawal from the U.S. Naval Academy because he is gay, a federal appeals court ordered the Academy to graduate midshipman Joseph F. Steffan. The three-member judicial panel further ordered the Pentagon to commission him as an officer and declared the former policy unconstitutional.

Steffan had been forced to withdraw from the academy because Naval investigators had confirmed that he had told a fellow midshipman that he was gay. In the decision, the U.S. Court of Appeals for the District of Columbia Circuit said Navy rules calling for Steffan's expulsion "solely because he admitted his gay orientation are not rationally related to any legitimate goal."

But come December 30, the Justice Department, on behalf of the Pentagon, filed a petition for rehearing the November 16 decision. While the petition avoids the issue of constitutionality of the now discarded policy, it argues that the judges exceeded their authority by ordering the commission. It says that under the separation of powers, only the president may appoint, and the Senate confirm, military officers.

Pentagon papers

While the courts continue the dirty work of resolving the role of lesbians and gay men in the military, it should be noted that

the ban has never been supported by hard fact in the 50-odd years of its existence. In 1989, members of Congress who supported lifting the ban released draft copies of two internal Pentagon reports that found that gays in the military posed no security risk and in many cases, made better soldiers than straights.

In late summer 1993, legislators again called for the release of findings from a $1.3 million study of gays in the military commissioned by the Department of Defense. The report, conducted by the Rand Corporation, found "no substantive basis for maintaining the existing ban." Ironically, this was the fourth study of the ban commissioned by the DoD since the 1940s, and the fourth study that recommended an end to the ban.

By year's end the Pentagon had released its restructured policy. While it claims to put an end to witch hunts, limitations on expression are still intact. "Homosexual conduct is defined as a homosexual act, a statement by the applicant that demonstrates a propensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage," reads the new policy. A training guide for commanders in the field was also released, outlining five areas of revision. No service member is to be asked questions about sexual orientation. Members will be removed based on conduct, not orientation. No criminal investigations of sexual misconduct will be initiated solely to determine sexual orientation. Questions about sexual orientation will not be asked on personnel security questionnaires. Upon entry into the military and periodically thereafter, members will be informed about the new policy.

In response to the new regulations, Rep. Frank said the Pentagon was merely "dressing up a pig" by basing regulations on a flawed policy. But he said that "given that it's a lousy policy, the regulations are pretty good." The question remains of how carefully the new policy will be followed.

But Republican members of the Senate Armed Services Committee say the new policy is too liberal and threaten congressional action if the administration does not tighten regulations.

Sen. Strom Thurmond of South Carolina, the ranking Republican on the committee, and Sen. Dan Coats of Indiana said in a letter to President Clinton that they were concerned that Pentagon regulations may undercut federal statutes.

They said guidance to field officers provided in the regulations "appears to place many limits on commanders that are not applicable to other disciplinary matters."

The senators said they were prepared to examine the regulations in oversight hearings and seek further amendments if the Pentagon does not make changes before the rules go into effect on February 5. About-face.

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