Gay & bi veterans score a win in court as judge rejects DOD’s attempt to dismiss case

LGBTQ+ veterans who were discharged from the military due to their sexuality got a win this week when a judge denied the Department of Defense’s motion to dismiss the case.

The lawsuit represents gay and bi veterans who were discharged because of rules like Don’t Ask, Don’t Tell that barred them from serving in the military. The federal complaint, which was filed last year, said that 35,081 veterans were discharged or otherwise separated from the military “because of real or perceived homosexuality, homosexual conduct, sexual perversion or any other related reason” from 1980 to 2011.

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Four out of the five plaintiffs, like most gay veterans who are discharged, received less-than-honorable discharges. The lawsuit is seeking to strip all references regarding the veterans’ sexual orientations and change the discharges to “honorable.”

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“The government’s discriminatory discharges and resulting discharge paperwork have ripple effects throughout the lives of LGBTQ+ veterans,” said the plaintiffs in their lawsuit. The current administrative process for clearing the less-than-honorable discharge is “lengthy and burdensome,” they argue. It requires both “statements from their military supervisors (who may have participated in the discrimination) [and] letters of support from colleagues and friends (to whom the applicant must disclose the trauma of their discharge).”

Being discharged in this way separates veterans from a key social network, the plaintiffs point out. It “further isolates LGBTQ+ veterans from the veteran community, which is typically an important source of social and emotional support among those with shared lived experiences.”

The plaintiffs say that “the government’s discriminatory discharges and resulting discharge paperwork have ripple effects throughout the lives of LGBTQ+ veterans.” Their discharge forms, called DD-214 forms, include information that identifies the plaintiffs as gay, which they allege is unconstitutional because it is a violation of the Equal Protection Clause of the Constitution.

“By including this private information on their proof of military service, the government has unnecessarily invaded these veterans’ private lives and infringed their right to keep sexual and relationship information private. For these veterans, proving their military service can therefore have the immediate effect of disclosing the veteran’s sexual orientation,” they state in the complaint.

U.S. Magistrate Judge Joseph Spero disagreed with the Department of Defense’s assertion that the process to amend DD-214 forms is not unconstitutional because it does not have “discriminatory intent.” In his 44-page ruling, Judge Spero said, “Plaintiffs’ equal protection claim is based on defendants’ affirmative decision to leave the discharge paperwork of veterans discharged under DADT and predecessor policies unchanged and place the burden on veterans who were discharged on the basis of sexual orientation to seek a correction of their paperwork.”

“Plaintiffs have included extensive allegations in the [first amended complaint] about the trauma inflicted on them by the approach defendants have chosen to take to handling the sexual orientation information (and sometimes associated dishonorable discharge information) reflected on their discharge paperwork,” the ruling further reads.

“This decision is especially significant as it comes during Pride Month, a time when we celebrate the progress, and recognize the ongoing struggle for, LGBTQ+ rights. These brave veterans honorably served our country, and we look forward to securing the justice they rightfully deserve,” the plaintiff’s legal team at the nonprofits organizations Impact Fund and Legal Aid at Work, and law firm King & Spalding said in a written statement.

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