Editors' Note: Guest blogger Aaron Tax serves as Servicemembers Legal Defense Network's Legal Director. Mr. Tax provides legal assistance to those currently serving who are impacted by "Don't Ask, Don't Tell," and related forms of discrimination, including those who are HIV positive and/or transgender. Prior to joining SLDN, he spent three years working for the Department of the Army in the Office of EEO and Civil Rights.
Despite mainstream media reports that service members can no longer be outed by "third parties," it's important that the 66,000 lesbian, gay, and bisexual service members understand that they can still be fired under DADT - even if outed by so called "third parties."
We recognize that the new DoD Instructions (learn more here and here) further define what "credible information from a reliable source" may mean, but based on SLDN's preliminary analysis, we cannot guarantee that service members are protected.
The updated language does not change the fact that statements, acts, or same-sex marriage, are still grounds for discharge under DADT, including:
- A service member can still be fired if outed by his or her parents;
- A service member can still be fired for revealing his or her sexual orientation while making a statement to the police that would prevent or help solve a crime;
- A service member's middle school teacher can still out the service member 10 years after he came out to her in social studies class;
- A service member can still be discharged if he reports that someone has threatened to kill him for being gay;
- A service member can still be fired for hugging someone of the same sex;
- A service member can still be fired for getting married; and
- A service member can still be fired for saying she would like to return from Iraq to care for her dying girlfriend.
SLDN can say that under the new Instructions, LGBT service members can now safely talk to psychotherapists and clergy, in their professional capacities; safely talk to a medical professional in furtherance of medical treatment or a public health official in the course of a public health inquiry; and safely seek professional assistance for domestic or physical abuse.
While the psychotherapist, chaplain, and other medical professional protections might not greatly decrease the number of discharges under the law, the 66,000 lesbian, gay, and bisexual service members serving in the US and deployed to war zones around the world can breathe a little more easily... The impact of the rest of the changes has yet to be seen.
But one thing remains the same. At the end of the day, until Congress changes the law, lesbian, gay, and bisexual service members will continue to be fired simply for who they are.
For more information, service members should contact SLDN for legal advice.