Report of the Comprehensive Review of the Issues Associated with a Repeal of "Don't Ask, Don't Tell"
November 30, 2010
On March 2, 2010, the Secretary of Defense appointed the two of us to co-chair a working group to undertake a comprehensive review of the impacts of repeal, should it occur, of Section 654 of Title 10 of the United States Code, commonly known as the “Don’t Ask, Don’t Tell” law. In this effort, we were aided by a highly dedicated team of 49 military and 19 civilian personnel from across the Department of Defense and the Military Services. Our assignment from the Secretary was two-fold: 1) assess the impact of repeal of Don’t Ask, Don’t Tell on military readiness, military effectiveness, unit cohesion, recruiting, retention, and family readiness; and 2) recommend appropriate changes, if necessary, to existing regulations, policies, and guidance in the event of repeal. The Secretary directed us to deliver our assessment and recommendations to him by December 1, 2010.1 This document constitutes our report of that assessment and our recommendations. The Secretary also directed us to develop a plan of action to support implementation of a repeal of Don’t Ask, Don’t Tell. That plan accompanies this report.
At the outset, it is important to note the environment in which we conducted our work: the Nation’s military has been at war on several fronts for over 9 years. Much is being demanded from the force. The men and women in uniform who risk their lives to defend our Nation are, along with their families, stretched and stressed, and have faced years of multiple and lengthy deployments to Iraq, Afghanistan, and elsewhere. Some question the wisdom of taking on the emotional and difficult issue of Don’t Ask, Don’t Tell on top of all else. For these and other reasons, the Secretary directed that we “thoroughly, objectively and methodically examine all aspects of this question,” and include, most importantly, the views of our men and women in uniform. Accordingly, over the last nine months we: solicited the views of nearly 400,000 active duty and reserve component Service members with an extensive and professionally-developed survey, which prompted 115,052 responses—one of the largest surveys in the history of the U.S. military;
- solicited the views of over 150,000 spouses of active duty and reserve component Service members, because of the influence and importance families play in the lives of Service members and their decisions to join, leave, or stay in the military, and received 44,266 responses;
- created an online inbox for Service members and their families to offer their views, through which we received a total of 72,384 entries;
- conducted 95 face-to-face “information exchange forums” at 51 bases and installations around the world, where we interacted with over 24,000 Service members—ranging from soldiers at Fort Hood, Fort Benning, and Fort Bragg, sailors at Norfolk, San Diego, and Pearl Harbor, airmen at Lackland, Langley, and Yokota in Japan, Marines at Camp Lejeune, Camp Pendleton, and Parris Island, cadets and midshipmen at our Service academies, and Coast Guardsmen on Staten Island, New York;
- conducted 140 smaller focus group sessions with Service members and their families;
- solicited the views of the Service academy superintendents and faculty, Service chiefs of chaplains, and Service surgeons general;
- solicited and received the views of various members of Congress; engaged RAND to update its 1993 study, Sexual Orientation and U.S. Military Personnel Policy;
- solicited and received the views of foreign allies, veterans groups, and groups both for and against repeal of the current law and policy; and
- during a two-week period prior to issuance, solicited and received the comments of the Secretaries of the Army, Navy and Air Force, and the Chiefs of each Service, on this report in draft form.
Finally, we heard the views and experiences of current and former Service members who are gay or lesbian. We knew that their viewpoints would be important, and we made affirmative efforts to reach them, though our ability to do so under the current Don’t Ask, Don’t Tell law was limited. The two of us personally interviewed former Service members who are gay or lesbian, including those who had been separated under Don’t Ask, Don’t Tell. To reach those currently in the military, we hired a private company to administer the survey of Service members and an interactive online confidential communications mechanism. This company was obligated to protect the identity of Service members and did not reveal identifying information to the Working Group. Through the confidential communications mechanism, the private company was able to engage a total of 2,691 Service members, 296 of whom self-identified as gay or lesbian, in interactive online conversations about their experiences.
Our Working Group also reviewed hundreds of relevant laws, regulations, and Department of Defense and Service policies and issuances (directives, instructions, and memoranda) and evaluated various policy options. As discussed in detail in section V, the breadth and depth of the Working Group’s work was extensive. To our knowledge, our nine-month review and engagement of the force was the largest and most comprehensive in the history of the U.S. military, on any personnel-related matter.
Based on all we saw and heard, our assessment is that, when coupled with the prompt implementation of the recommendations we offer below, the risk of repeal of Don’t Ask, Don’t Tell to overall military effectiveness is low. We conclude that, while a repeal of Don’t Ask, Don’t Tell will likely, in the short term, bring about some limited and isolated disruption to unit cohesion and retention, we do not believe this disruption will be widespread or long-lasting, and can be adequately addressed by the recommendations we offer below. Longer term, with a continued and sustained commitment to core values of leadership, professionalism, and respect for all, we are convinced that the U.S. military can adjust and accommodate this change, just as it has others in history.2
Significant to our assessment are the following:
The results of the Service member survey reveal a widespread attitude among a solid majority of Service members that repeal of Don’t Ask, Don’t Tell will not have a negative impact on their ability to conduct their military mission.3 The survey was conducted by Westat, a research firm with a long track record of conducting surveys for the U.S. military. The survey was one of the largest in the history of the military. We heard from over 115,000 Service members, or 28% of those solicited. Given the large number of respondents, the margin of error for the results was less than ±1%, and the response rate was average for the U.S. military.
The results of the survey are best represented by the answers to three questions:
- When asked about how having a Service member in their immediate unit who said he or she is gay would affect the unit’s ability to “work together to get the job done,” 70% of Service members predicted it would have a positive, mixed, or no effect.4
- When asked “in your career, have you ever worked in a unit with a co-worker that you believed to be homosexual,” 69% of Service members reported that they had.5
- When asked about the actual experience of serving in a unit with a co-worker who they believed was gay or lesbian, 92% stated that the unit’s “ability to work together” was “very good,” “good,” or “neither good nor poor.”6
Consistently, the survey results revealed a large group of around 50–55% of Service members who thought that repeal of Don’t Ask, Don’t Tell would have mixed or no effect; another 15–20% who said repeal would have a positive effect; and about 30% who said it would have a negative effect.7 The results of the spouse survey are consistent. When spouses were asked about whether repeal of Don’t Ask, Don’t Tell would affect their preference for their Service member’s future plans to stay in the military, 74% said repeal would have no effect, while only 12% said “I would want my spouse to leave earlier.”8
To be sure, these survey results reveal a significant minority—around 30% overall (and 40–60% in the Marine Corps and in various combat arms specialties)—who predicted in some form and to some degree negative views or concerns about the impact of a repeal of Don’t Ask, Don’t Tell. Any personnel policy change for which a group that size predicts negative consequences must be approached with caution. However, there are a number of other factors that still lead us to conclude that the risk of repeal to overall military effectiveness is low.
The reality is that there are gay men and lesbians already serving in today’s U.S. military, and most Service members recognize this. As stated before, 69% of the force recognizes that they have at some point served in a unit with a co-worker they believed to be gay or lesbian.9 Of those who have actually had this experience in their career, 92% stated that the unit’s “ability to work together” was “very good,” “good,” or “neither good nor poor,” while only 8% stated it was “poor” or “very poor.”10 Anecdotally, we also heard a number of Service members tell us about a leader, co-worker, or fellow Service member they greatly liked, trusted, or admired, who they later learned was gay; and how once that person’s sexual orientation was revealed to them, it made little or no difference to the relationship.11 Both the survey results and our own engagement of the force convinced us that when Service members had the actual experience of serving with someone they believe to be gay, in general unit performance was not affected negatively by this added dimension.
Yet, a frequent response among Service members at information exchange forums, when asked about the widespread recognition that gay men and lesbians are already in the military, were words to the effect of: “yes, but I don’t know they are gay.” Put another way, the concern with repeal among many is with “open” service.
In the course of our assessment, it became apparent to us that, aside from the moral and religious objections to homosexuality, much of the concern about “open” service is driven by misperceptions and stereotypes about what it would mean if gay Service members were allowed to be “open” about their sexual orientation. Repeatedly, we heard Service members express the view that “open” homosexuality would lead to widespread and overt displays of effeminacy among men, homosexual promiscuity, harassment and unwelcome advances within units, invasions of personal privacy, and an overall erosion of standards of conduct, unit cohesion, and morality. Based on our review, however, we conclude that these concerns about gay and lesbian Service members who are permitted to be “open” about their sexual orientation are exaggerated, and not consistent with the reported experiences of many Service members.
In today’s civilian society, where there is no law that requires gay men and lesbians to conceal their sexual orientation in order to keep their job, most gay men and lesbians still tend to be discrete about their personal lives, and guarded about the people with whom they share information about their sexual orientation. We believe that, in the military environment, this would be true even more so. According to a survey conducted by RAND of a limited number of individuals who anonymously self-identified as gay and lesbian Service members, even if Don’t Ask, Don’t Tell were repealed, only 15% of gay and lesbian Service members would like to have their sexual orientation known to everyone in their unit.12 This conclusion is also consistent with what we heard from gay Service members in the course of this review:
“Personally, I don’t feel that this is something I should have to ‘disclose.’ Straight people don’t have to disclose their orientation. I will just be me. I will bring my family to family events. I will put family pictures on my desk. I am not going to go up to people and say, hi there—I’m gay.”13
“I think a lot of people think there is going to be this big ‘outing’ and people flaunting their gayness, but they forget that we’re in the military. That stuff isn’t supposed to be done during duty hours regardless if you’re gay or straight.”14
If gay and lesbian Service members in today’s U.S. military were permitted to make reference to their sexual orientation, while subject to the same standards of conduct as all other Service members, we assess that most would continue to be private and discreet about their personal lives. This discretion would occur for reasons having nothing to do with law, but everything to do with a desire to fit in, co-exist, and succeed in the military environment.
As one gay Service member stated:
“I don’t think it’s going to be such a big, huge, horrible thing that DoD is telling everyone it’s going to be. If it is repealed, everyone will look around their spaces to see if anyone speaks up. They’ll hear crickets for a while. A few flamboyant guys and tough girls will join to rock the boat and make a scene. Their actions and bad choices will probably get them kicked out. After a little time has gone by, then a few of us will speak up. And instead of a deluge of panic and violence…there’ll be ripple on the water’s surface that dissipates quicker than you can watch.”15
In communications with gay and lesbian current and former Service members, we repeatedly heard a patriotic desire to serve and defend the Nation, subject to the same rules as everyone else. In the words of one gay Service member, repeal would simply “take a knife out of my back....You have no idea what it is like to have to serve in silence.”16 Most said they did not desire special treatment, to use the military for social experimentation, or to advance a social agenda. Some of those separated under Don’t Ask, Don’t Tell would welcome the opportunity to rejoin the military if permitted. From them, we heard expressed many of the same values that we heard over and over again from Service members at large—love of country, honor, respect, integrity, and service over self. We simply cannot square the reality of these people with the perceptions about “open” service.
Given that we are in a time of war, the combat arms communities across all Services required special focus and analysis. Though the survey results demonstrate a solid majority of the overall U.S. military who predict mixed, positive or no effect in the event of repeal, these percentages are lower, and the percentage of those who predict negative effects are higher, in combat arms units. For example, in response to question 68a, while the percentage of the overall U.S. military that predicts negative or very negative effects on their unit’s ability to “work together to get the job done” is 30%, the percentage is 43% for the Marine Corps, 48% within Army combat arms units, and 58% within Marine combat arms units.17
However, while a higher percentage of Service members in warfighting units predict negative effects of repeal, the percentage distinctions between warfighting units and the entire military are almost non-existent when asked about the actual experience of serving in a unit with someone believed to be gay. For example, when those in the overall military were asked about the experience of working with someone they believed to be gay or lesbian, 92% stated that their unit’s “ability to work together,” was “very good, “good” or “neither good nor poor.”18 Meanwhile, in response to the same question, the percentage is 89% for those in Army combat arms units and 84% for those in Marine combat arms units—all very high percentages.19 Anecdotally, we heard much the same. As one special operations force warfighter told us, “We have a gay guy [in the unit]. He’s big, he’s mean, and he kills lots of bad guys. No one cared that he was gay.”20
Thus, the survey results reflecting actual experience, our other engagements, and the lessons of history lead us to conclude that the risks of repeal within warfighting units, while higher than the force generally, remain within acceptable levels when coupled with our recommendations for implementation.
The survey results also reveal, within warfighting units, negative predictions about serving alongside gays decrease when in “intense combat situations.” In response to question 71a, for example, 67% of those in Marine combat arms units predict working alongside a gay man or lesbian will have a negative effect on their unit’s effectiveness in completing its mission “in a field environment or out at sea.” By contrast, in response to the same question, but during “an intense combat situation,” the percentage drops to 48%.21 See section VII. While 48% indicates a significant level of concern, the near 20-point difference in these two environments reflects that, in a combat situation, the warfighter appreciates that differences with those within his unit become less important than defeating the common enemy.
Our assessment also took account of the fact that the Nation is at war on several fronts, and, for a period of over nine years, the U.S. military has been fully engaged, and has faced the stress and demands of frequent and lengthy deployments. We conclude that repeal can be implemented now, provided it is done in manner that minimizes the burden on leaders in deployed areas. Our recommended implementation plan does just that, and it is discussed more fully in section XIII of this report and in the accompanying support plan for implementation. The primary concern is for the added requirement that will be created by the training and education associated with repeal. We are cognizant of this concern, but note that during this time of war, the Services have undertaken education and training in deployed areas on a number of important personnel matters. These education and training initiatives have included increased emphasis on sexual assault prevention and response, suicide prevention, and training to detect indications of behavioral health problems. The conduct of these programs in deployed areas indicates that training and education associated with a repeal of Don’t Ask, Don’t Tell can be accommodated. We assess this to be the case, in large part because our recommendations in this report involve a minimalist approach to changes in policies, and education and training to reiterate existing policies in a sexual orientation-neutral manner.
It is also the case that the results of the survey indicate that, in this war-time environment, a solid majority of Service members believe that repeal will have positive, mixed, or no effect. Most of those surveyed joined our military after September 11, 2001, and have known nothing but a military at war.
Our assessment here is also informed by the lessons of history in this country. Though there are fundamental differences between matters of race, gender, and sexual orientation, we believe the U.S. military’s prior experiences with racial and gender integration are relevant. In the late 1940s and early 1950s, our military took on the racial integration of its ranks, before the country at large had done so. Our military then was many times larger than it is today, had just returned from World War II, and was in the midst of Cold War tensions and the Korean War. By our assessment, the resistance to change at that time was far more intense: surveys of the military revealed opposition to racial integration of the Services at levels as high as 80–90%.22 Some of our best-known and most-revered military leaders from the World War II-era voiced opposition to the integration of blacks into the military, making strikingly similar predictions of the negative impact on unit cohesion. But by 1953, 95% of all African-American soldiers were serving in racially integrated units, while public buses in Montgomery, Alabama and other cities were still racially segregated.23 Today, the U.S. military is probably the most racially diverse and integrated institution in the country—one in which an African American rose through the ranks to become the senior-most military officer in the country 20 years before Barack Obama was elected President.
The story is similar when it came to the integration of women into the military. In 1948, women were limited to 2% of active duty personnel in each Service,24 with significant limitations on the roles they could perform. Currently, women make up 14% of the force,25 and are permitted to serve in 92% of the occupational specialties.26 Along the way to gender integration, many of our Nation’s military leaders predicted dire consequences for unit cohesion and military effectiveness if women were allowed to serve in large numbers. As with racial integration, this experience has not always been smooth. But, the consensus is the same: the introduction and integration of women into the force has made our military stronger.
The general lesson we take from these transformational experiences in history is that in matters of personnel change within the military, predictions and surveys tend to overestimate negative consequences, and underestimate the U.S. military’s ability to adapt and incorporate within its ranks the diversity that is reflective of American society at large.
Our conclusions are also informed by the experiences of our foreign allies. To be sure, there is no perfect comparator to the U.S. military, and the cultures and attitudes toward homosexuality vary greatly among nations of the world. However, in recent times a number of other countries have transitioned to policies that permit open military service by gay men and lesbians. These include the United Kingdom, Canada, Australia, Germany, Italy, and Israel. Significantly, prior to change, surveys of the militaries in Canada and the U.K. indicated much higher levels of resistance than our own survey results—as high as 65% for some areas27— but the actual implementation of change in those countries went much more smoothly than expected, with little or no disruption.
Likewise, the experience of various municipal and federal agencies is somewhat relevant. These agencies include the CIA, FBI, USAID, and the State Department, who at present have personnel who live and work alongside U.S. military personnel in deployed areas. Reportedly, in those agencies the integration of gay and lesbian personnel did not negatively affect institutional or individual job performance.
Finally, our overall assessment is itself based on a risk assessment conducted by a panel of military and DoD career civilian personnel drawn from across the Services, and included those in combat arms specialties. The panel utilized a standard military decision support process recommended by the J–8 directorate of the Joint Staff. This same process has been used by the Department of Defense to support recent decisions about the new Cyber Command location and authority, and the Afghanistan National Security Force size and mix. Upon reviewing the survey results and other information gathered by the Working Group, the panel members utilized their own professional judgment to assess the risk of a repeal of Don’t Ask, Don’t Tell to military readiness, unit effectiveness, unit cohesion, recruiting, retention, and family readiness. The results of that exercise are detailed in section XI.
Informed by the panel’s determinations, as the co-chairs of the Working Group the two of us then assessed the risk of repeal to overall “military effectiveness” as low. Figure 1 depicts the panel’s ratings, plus our own assessment of risk to overall military effectiveness.
In sum, we are convinced the U.S. military can make this change, even during this time of war. However, this assessment is accompanied by, and depends upon, the recommendations provided in section XIII of this report.
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.
Included, also, should be a message to those who are opposed to “open” service on well-founded moral or religious grounds, that their views and beliefs are not rejected, and that leaders have not turned their backs on them. In the event of repeal, we cannot and should not expect individual Service members to change their personal religious or moral beliefs about homosexuality, but we do expect every Service member to treat all others with dignity and respect, consistent with the core values that already exist in each Service. These are not new concepts for the U.S. military, given the wide variety of views, races, and religions that already exist within the force.
Our most significant recommendations are as follows:
Leadership, Training, and Education. Successful implementation of repeal of Don’t Ask, Don’t Tell will depend upon strong leadership, a clear message, and proactive education. Throughout our review, we heard from a number of senior officers and senior enlisted leaders in all the Services words to the effect of “If the law changes, we can do this; just give us the tools to communicate a clear message.” This will require us to equip commanders in the field with the education and training tools to educate the force on what is expected of them in a post repeal environment. In our support plan accompanying this report, we set forth this key implementation message for repeal:
- Leadership. The clear message from the Working Group’s assessment is “leadership matters most.” Leaders at all levels of the chain of command set the example for members in the unit and must be fully committed to DoD policy to sustain unit effectiveness, readiness, and cohesion.
- Professionalism. Leaders must emphasize Service members’ fundamental professional obligations and the oath to support and defend the Constitution that is at the core of their military service. In the profession of arms, adherence to military policy and standards of conduct is essential to unit effectiveness, readiness, and cohesion.
- Respect. Unit strength depends on the strength of each member. We achieve that strength by treating each member with respect.
In our view, the starting point for this message should be a written communication from the leaders of the Department of Defense, including the Secretary of Defense and senior military leaders of each Service, that deliver their expectations in clear and forceful terms.
Standards of Conduct. Throughout our engagement with the force, we heard many concerns expressed by Service members about possible inappropriate conduct that might take place in the event of repeal, including unprofessional relationships between Service members; public displays of affection; inappropriate dress and appearance; and acts of violence, harassment, and disrespect. Many of these concerns were about conduct that is already regulated in the military environment, regardless of the sexual orientation of the persons involved, or whether it involves persons of the same sex or the opposite sex. For instance, military standards of conduct—as reflected in the Uniform Code for Military Justice, Service regulations and policies, and unwritten Service customs and traditions—already prohibit fraternization and unprofessional relationships. They also address various forms of harassment and unprofessional behavior, prescribe appropriate dress and appearance, and provide guidelines on public displays of affection.
We believe that it is not necessary to establish 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 guidance that all standards of conduct apply uniformly, without regard to sexual orientation. We also recommend that the Department of Defense direct the Services to review their current standards to ensure that they are sexual-orientation neutral and that they 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 punish and remedy inappropriate conduct that may arise in a post-repeal environment.
As a related matter, to address tensions and incidents that may arise between individual Service members in a post-repeal environment, including the Service member who simply refuses to serve alongside a gay person, commanders should be reminded of the enormous latitude and discretion they have, for the sake of unit cohesion, to address any situation concerning Service members who are intolerant or intractable in their behavior toward one another.
Moral and Religious Concerns. In the course of our review, we heard a large number of Service members raise religious and moral objections to homosexuality or to serving alongside someone who is gay. Some feared repeal of Don’t Ask, Don’t Tell might limit their individual freedom of expression and free exercise of religion, or require them to change their personal beliefs about the morality of homosexuality. The views expressed to us in these terms cannot be downplayed or dismissed. Special attention should also be given to address the concerns of our community of 3,000 military chaplains. Some of the most intense and sharpest divergence of views about Don’t Ask, Don’t Tell exists among the chaplain corps. A large number of military chaplains (and their followers) believe that homosexuality is a sin and an abomination, and that they are required by God to condemn it as such.
However, the reality is that in today’s U.S. military, people of sharply different moral values and religious convictions—including those who believe that abortion is murder and those who do not, and those who believe Jesus Christ is the Son of God and those who do not—and those who have no religious convictions at all, already co-exist, work, live, and fight together on a daily basis. The other reality is that policies regarding Service members’ individual expression and free exercise of religion already exist, and we believe they are adequate. Service members will not be required to change their personal views and religious beliefs; they must, however, continue to respect and serve with others who hold different views and beliefs.
Within the chaplain community, the solution to this issue can be found in the existing guidance developed by and for our chaplains, which we believe should be reiterated as part of any education and training concerning repeal. Those regulations strike an appropriate balance between protecting a chaplain’s First Amendment freedoms and a chaplain’s duty to care for all. Existing regulations state that chaplains “will not be required to perform a religious role...in worship services, command ceremonies, or other events, if doing so would be in variance with the tenets or practices of their faith.”28 At the same time, regulations state that “Chaplains care for all Service members, including those who claim no religious faith, facilitate the religious requirements of personnel of all faiths, provide faith-specific ministries, and advise the command.”29
Privacy and Cohabitation. In the course of our review we heard from a very large number of Service members about their discomfort with sharing bathroom facilities or living quarters with those they know to be gay or lesbian. Some went so far to suggest that a repeal of Don’t Ask, Don’t Tell may even require separate bathroom and shower facilities for gay men and lesbians. We disagree, and recommend against separate facilities. Though many regard the very discussion of this topic as offensive, given the number of Service members who raised it, we are obliged to address it.
The creation of a third and possibly fourth category of bathroom facilities and living quarters, whether at bases or forward deployed areas, would be a logistical nightmare, expensive, and impossible to administer. And, even if it could be achieved and administered, separate facilities would, in our view, stigmatize gay and lesbian Service members in a manner reminiscent of “separate but equal” facilities for blacks prior to the 1960s. Accordingly, we recommend that the Department of Defense expressly prohibit berthing or billeting assignments or the designation of bathroom facilities based on sexual orientation. At the same time, commanders would retain the authority they currently have to alter berthing or billeting assignments or accommodate privacy concerns on an individualized, case-by-case basis, in the interests of morale, good order and discipline, and consistent with performance of mission.30 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 either living quarters or showers, whether the person who engages in the misconduct is gay or straight.
Most concerns we heard about showers and bathrooms were based on stereotype— that gay men and lesbians will behave as predators in these situations, or that permitting homosexual and heterosexual people of the same sex to shower together is tantamount to allowing men and women to shower together. However, common sense tells us that a situation in which people of different anatomy shower together is different from a situation in which people of the same anatomy but different sexual orientations shower together. The former is uncommon and unacceptable to almost everyone in this country; the latter is a situation most in the military have already experienced. Indeed, the survey results indicate 50% of Service members recognize they have already had the experience of sharing bathroom facilities with someone they believed to be gay.31 This is also a situation resembling what now exists in hundreds of thousands of college dorms, college and high school gyms, professional sports locker rooms, police and fire stations, and athletic clubs around the nation. And, 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 these situations.32
Equal Opportunity. We recommend that, in a post-repeal environment, gay and lesbian Service members be treated under the same general principles of military equal opportunity policy that apply to all Service members. Under the Military Equal Opportunity program, it is DoD policy to “[p]romote an environment free from personal, social, or institutional barriers that prevent Service members from rising to the highest level or responsibility possible. Service members shall be evaluated only on individual merit, fitness, and capability.”33 This policy goes hand-in-hand with Service-level policies and basic military values that call for treating every military member with dignity and respect.
We do not recommend that sexual orientation be placed alongside race, color, religion, sex, and national origin, as a class eligible for various diversity programs, tracking initiatives, and complaint resolution processes under the Military Equal Opportunity Program. We believe that doing so could produce a sense, rightly or wrongly, that gay men and lesbians are being elevated to a special status as a “protected class” and will receive special treatment. In a new environment in which gay and lesbian Service members can be open about their sexual orientation, we believe they will be accepted more readily if the military community understands that they are simply being permitted equal footing with everyone else.
In the event of repeal of Don’t Ask, Don’t Tell, 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 can be dealt with through existing mechanisms—primarily the chain of command—available for complaints not involving race, color, sex, religion, or national origin.
Benefits. As part of this review, we considered appropriate changes, in the event of repeal, to benefits to be accorded to same-sex partners and families of gay Service members. This issue is itself large and complex, and implicates the ongoing national political and legal debate regarding same-sex relationships.
Members of the U.S. military are eligible for and receive a wide array of benefits and support resources, both for themselves and their families. A reality is that, given current law, particularly the Defense of Marriage Act, there are a number of those benefits that cannot legally be extended to gay and lesbian Service members and their same-sex partners, even if they are lawfully married in a state that permits same-sex marriage. An example of this is the Basic Allowance for Housing at the “with-dependent rate.” The “with-dependent” rate is limited by statute to Service members with “dependents.”34 The word “dependent” is also defined by statute and is limited to the Service member’s “spouse” or dependent parents, unmarried children, or certain others under the age of 23 who are placed in the legal custody of the Service member.35 And, the Defense of Marriage Act limits the definition of the word “spouse” to mean “only a person of the opposite sex who is a husband or wife.”36
However, there are some benefits that are now, under current law and regulations, fully available to anyone of a Service member’s choosing, including a same-sex partner, because they are “member-designated” benefits. Examples here are beneficiaries for Servicemembers’ Group Life Insurance and Thrift Savings Plan, missing member notification, and hospital visitation access. If Don’t Ask, Don’t Tell is repealed, Service members may designate a same-sex partner for these benefits without then having to conceal the nature of the relationship from the military. In the event of repeal, the Department of Defense and the Services should inform Service members about these types of benefits so that they can take advantage of them for their committed same-sex partners should they desire to do so.
A third category of benefits are those that are not statutorily prohibited, but that current regulations do not extend to same-sex partners. With regard to this category, the Department of Defense and the Services have the regulatory flexibility to revise and redefine the eligible beneficiaries to include same-sex partners. Here, we recommend that, where justified from a policy, fiscal, and feasibility standpoint, the benefit be refashioned to become a member-designated one—in other words, to give the Service member, gay or straight, the discretion to designate whomever he or she wants as beneficiary. An example of a benefit in this category is the provision of free legal services by a military legal assistance office, and it may be suitable for this member-designated approach. Military family housing is another prominent benefit in this category. However, we do not recommend at this time 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 or she chooses as a “dependent,” is problematic. Military family housing is a limited resource and complicated to administer, and a system of member designation would create occasions for abuse and unfairness.37
Also, we are not, at this time, recommending that the Department of Defense or the Services revise their regulations to specifically add same-sex committed relationships to the definition of “dependent,” “family members,” or other similar terms in those regulations, for purposes of extending benefits eligibility. We are convinced that, to create an environment in which gay and lesbian Service members can win quick and easy acceptance within the military community, repeal must be understood as an effort to achieve equal treatment for all. If, simultaneous with repeal, the Department of Defense creates a new category of unmarried dependent or family member reserved only for same-sex relationships, the Department of Defense itself would be creating a new inequity—between unmarried, committed same-sex couples and unmarried, committed opposite-sex couples. This new inequity, or the perception of it, runs counter to the military ethic of fair and equal treatment, and resentment at perceived inequities runs deep in military families.
We recommend that the particular issue of a “qualifying relationship” status for couples not in a Federally-recognized marriage be revisited as part of a follow-on review of the implementation of a repeal of Don’t Ask, Don’t Tell. This will permit the Department of Defense to revisit and reassess the issue as implementation of repeal is underway. It is also in recognition that the national debate on same-sex marriage and partner benefits is ongoing, and that the judicial and legislative landscape on this issue is in a state of flux.
Re-accession. In the event of repeal, we recommend that Service members who have been previously separated under Don’t Ask, Don’t Tell be permitted to apply for reentry into the military, pursuant to the same criteria as others who seek reentry. The fact that their separation was for homosexual conduct would not be considered as part of the Service member’s application for re-accession. For example, a Service member separated under Don’t Ask, Don’t Tell who received an honorable discharge would be evaluated for re-accession under the same criteria that other Service members who had received honorable discharges would be. Further, consistent with the practice for other Service members who apply for re-accession, we recommend that the Service member who applies for re-accession after having been separated under Don’t Ask, Don’t Tell not be given any type of credit for the time out of service, subject to any actions a board for the correction of military records may, in its discretion, take.
UCMJ. We support the pre-existing proposals to repeal Article 125 of the Uniform Code of Military Justice and remove private consensual sodomy between adults as a criminal offense. This change in law is warranted irrespective of whether Don’t Ask, Don’t Tell is repealed, to resolve any constitutional concerns about the provision in light of Lawrence v. Texas38 and United States v. Marcum.39 We also support revising offenses involving sexual conduct or inappropriate relationships to ensure sexual orientation neutral application, consistent with the recommendations of this report. For example, the offense of adultery defined in the Manual for Courts-Martial should be revised to apply equally to heterosexual and homosexual sex that is engaged in by or with a married person.
Follow-on Review. Finally, we recommend that one year after any repeal of Don’t Ask, Don’t Tell has been in effect, the Department of Defense conduct a follow-on review to monitor the implementation of repeal and to determine the adequacy of the recommended actions that are adopted. This should include a reassessment of the same-sex partner benefits issues referred to earlier.
We are confident in the assessment and recommendations summarized above and detailed in the pages that follow. As stated before, this may have been the most comprehensive and inclusive personnel-related review in the history of the U.S. military. We both personally spent many long hours on this project. Our work was supported by a team of highly-dedicated civilian and military personnel, many of whom are experts in the area of military personnel matters.
Two final points should be made about our mission. In the course of our review, many asked us if the stated positions of the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff in support of repeal in some way influenced, prejudiced, or constrained our review and assessment. This was not the case. The views expressed by Service members and their families in information exchange forums and other engagements were civil and professional, but always frank and diverse and reflected strongly held views both for and against changing the law and policy, without regard to the views expressed by our national leaders.
Next, our mandate was to assess the impact of repeal of Don’t Ask, Don’t Tell, and how best to implement repeal should it occur; we were not asked to determine whether the Don’t Ask, Don’t Tell law and policy should be repealed. However, our engagement of the force was wide-ranging enough that we did answer the question of whether the U.S. military can implement repeal of Don’t Ask, Don’t Tell. To be clear, the Service member survey did not ask the broad question whether Don’t Ask, Don’t Tell should be repealed. This would, in effect, have been a referendum, and it is not the Department of Defense’s practice to make military policy decisions by a referendum of Service members. But, among the 103 questions in the Service member survey and the 44 questions in the spouse survey were numerous opportunities to express, in one way or another, support for or opposition to repeal of the current policy. Among the 72,000 online inbox submissions were numerous expressions both for and against the current policy. If the impact of repeal was predominately negative, that would have revealed itself in the course of our review.
Further, as co-chairs, we believe we are both personally required to report our honest and candid assessments to the Secretary—either as the solemn duty of a military officer to his civilian leadership, or because of the fiduciary obligation a lawyer owes his client. Thus, if our assessment was that the risk to military effectiveness of implementing repeal was unacceptable, we both would have been obligated to report that to the Secretary.
We are both convinced that our military can do this, even during this time of war. We do not underestimate the challenges in implementing a change in the law, but neither should we underestimate the ability of our extraordinarily dedicated Service men and women to adapt to such change and continue to provide our Nation with the military capability to accomplish any mission.
1 During the nine months we conducted our work, the legislative and legal landscape for Don’t Ask, Don’t Tell changed considerably. In May, efforts in Congress to repeal 10 U.S.C. § 654 gained momentum, and a repeal provision was added to the National Defense Authorization Act (NDAA) for Fiscal Year 2011 in both the House and Senate. The amended NDAA passed the full House, but, as of this writing, has not been voted upon by the full Senate. Also, a federal district court in California declared the Don’t Ask, Don’t Tell law to be unconstitutional in September, and issued a worldwide injunction immediately prohibiting Don’t Ask, Don’t Tell enforcement the following month. The decision and injunction were appealed by the Government, and the Court of Appeals for the Ninth Circuit stayed the injunction pending the appeal. As of this writing, the appeal before the Ninth Circuit is still pending. After careful consideration of these legislative and legal developments, we determined they did not alter our assignment in any way.
2 Our assessment is based on conditions we observe in today’s U.S. military. It is not meant as commentary on any point prior to today, over the past 17 years since the Don’t Ask, Don’t Tell law was enacted by Congress. Nothing in this report should be construed as doubt by us about the wisdom of enacting 10 U.S.C. § 654 in 1993, given circumstances that existed then.
3 See Section VII, “The Survey Results.”
4 See Appendix C, “Survey Responses: 2010 Department of Defense Survey of Service Members,” Question 68a.
5 See Appendix C, Question 36.
6 See Appendix C, Question 47a.
7 See Appendix C, Questions 67-75.
8 See Appendix D, “Survey Responses: 2010 Department of Defense Survey of Spouses,” Question 17.
9 See Appendix C, Question 36.
10 See Appendix C, Question 47a.
11 Service members, CRWG Focus Groups, 2010; Service members, Online Inbox, 2010.
12 RAND, Sexual Orientation and U.S. Military Personnel Policy - An Update of RAND’s 1993 Study, Santa Monica, CA: National Defense Research Institution, November 2010, 27.
13 Service member, Confidential Communication Mechanism, 2010.
14 Service member, Confidential Communication Mechanism, 2010.
15 Service member, Confidential Communication Mechanism, 2010.
16 Service member, Confidential Communication Mechanism, 2010.
17 Westat, Support to the DoD Comprehensive Review Working Group Analyzing the Impact of Repealing “Don’t Ask, Don’t Tell,” vol. 1, Rockville, MD, November 19, 2010, Appendices J and L, Question 68a.
18 See Appendix C, Question 47a.
19 Westat, vol. 1 Appendices J and L, Question 47a.
20 Service member, CRWG Focus Group, 2010.
21 Westat, vol. 1 Appendices J and L, Questions 71a and 71c.
22 Erin R. Mahan, Office of the Secretary of Defense, Racial and Gender Intergration of the Armed Forces, August 9, 2010, 5–6.
23 Matthew Cashdollar, “Not Yes or No, But What If: Implications of Open Homosexuality in the Military,” in Attitudes Aren’t Free: Thinking Deeply About Diversity in the US Armed Forces, ed. James Parco and David Levy (Maxwell Air Force Base: Air University Press, 2010), 169.
24 Judith Bellafaire, “America’s Military Women—The Journey Continues,” accessed November 19, 2010, http://www.womensmemorial.org/Education/WHM982.html.
25 Defense Manpower Data Center, Female Representation in the Active Component - 1980, 1987, & 1990–2009, Excel spreadsheet.
26 OUSD(P&R), e-mail communication to CRWG, November 12, 2010.
27 United Kingdom Ministry of Defence, Report of the Homosexuality Policy Assessment Team (United Kingdom: February 1996); G2-8 and Franklin C. Pinch, Perspective on Organization Change in Canadian Forces, January 1994, 22.
28 Department of the Army, AR 165-1, Army Chaplain Corps Activities, December 3, 2009, 12.
29 Department of the Navy, SECNAVINST 1730.7D, Religious Ministry within the Department of the Navy, August 8, 2008, 5.
30 Each Service has directives on command authority, for example: Department of the Air Force, AFI 51-604, Assumption of Command, April 4, 2006; Department of the Army, AR 600-20, Army Command Policy, April 27, 2010.
31 See Appendix C, Question 87.
32 Retired Service member, communication to CRWG Co-Chair, May 10, 2010.
33 Department of Defense, DoDD 1350.2, Department of Defense Military Equal Opportunity (MEO) Program, August 18, 1995, 2–3; Department of Defense, DoDD 1020.2, Diversity Management and Equal Opportunity (EO) in the Department of Defense, February 5, 2009, 4.13
34 37 U.S.C. § 401.
35 37 U.S.C. § 401.
36 1 U.S.C. § 7.
37 Current Service policies state that non-dependents are not allowed to reside in military family housing. We do not recommend any changes to those policies, other than to state that any exception to policy to allow a non-dependent to reside in military family housing, be administered without regard to sexual orientation.
38 539 US 558 (2003).
39 60 M.J. 198 (C.A.A.F. 2004).
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