Honorable Few – Capt. J.J. Harris

Marine Corps League Detachment #1302

Pentagon’s request to dismiss lawsuit from LGBTQ+ veterans denied

A district court on Thursday denied the Pentagon’s request to dismiss a class action lawsuit by LGBTQ+ veterans challenging what advocates call “discriminatory paperwork” noting their discharge from the military over their actual or perceived sexual orientation.

A group of veterans, dubbed Justice for LGBTQ+ Veterans, filed the lawsuit in August 2023, claiming they had been discriminated against by the Pentagon’s former “Don’t Ask, Don’t Tell” policy due to their discharge papers unnecessarily identifying their sexual orientation as grounds for separation.

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The policy, repealed in 2011, prevented LGBTQ+ service members from serving openly.

While veterans can apply to have their discharge status reviewed, attorneys for the group previously told Military Times that the process can be onerous for LGBTQ+ veterans.

“We are very pleased that the Court recognized the merits of this case by denying the Department of Defense’s motion to dismiss,” attorneys for the veterans said in a statement. “This ruling allows us to move forward in rectifying the discriminatory effects of the Department of Defense’s policies, ensuring that LGBTQ+ veterans receive the honor they rightfully deserve, having served our country with dignity and integrity.”

The Pentagon asked the court to dismiss the lawsuit, citing a six-year statute of limitations for service members to challenge their discharge papers. In its motion, the Pentagon also argued the lawsuit’s timing conflicts with the department’s efforts to correct military records for service members discharged due to their sexual orientation.

Magistrate Judge Joseph Spero of the U.S. District Court for the Northern District of California denied the Pentagon’s motion. He noted the “burdensome” application process required for LGBTQ+ veterans to correct their discharge papers.

“[LGBTQ+ veterans] suffer new injuries … each time they must present their paperwork disclosing their sexual orientation to obtain benefits or are unable to access benefits that would have been available to them had they not been discharged under [the Defense Department’s] past unconstitutional policies and forced to bear the burden of seeking correction of that paperwork,” Spero wrote in the decision.

In September 2023, Pentagon officials announced a “proactive review” of LGBTQ+ veterans who received less than honorable discharges based on their sexual orientation through its “Don’t Ask, Don’t Tell” policy.

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A less than honorable discharge can limit a veteran’s access to veterans benefits or impact job prospects once out of the service.

The review, however, won’t include nearly 20,000 LGBTQ+ veterans expelled from the armed forces before the implementation of “Don’t Ask, Don’t Tell” in 1994.

The group declined to drop their lawsuit against the Pentagon after it announced the review.

According to the Defense Department, more than 32,000 troops were separated from the military under its “homosexual conduct” policy before and during the “Don’t Ask, Don’t Tell” era between 1980 and 2011. Of those, roughly 14,000 LGTBQ+ troops were given less than honorable discharges from the armed forces.

Attorneys for Justice for LGBTQ+ Veterans claim the number to be higher, with more than 35,000 troops discharged due to “real or perceived homosexuality, homosexual conduct, sexual perversion, or any other related reason,” according to the complaint.

Further information and results from the Pentagon’s review are expected later this fall, but defense officials have not provided an exact date.