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Verdicts & Settlements

Federal Judge: U.S. Department of Defense Can’t Dodge “Don’t-Ask, Don’t-Tell” Lawsuit

— June 21, 2024

“At least as a matter of pleading, these allegations are sufficient to allege conduct that shocks the conscience,” U.S. Magistrate Judge Joseph Spero wrote.

A federal judge in San Francisco has refused to dismiss a lawsuit claiming that the United States military violated the constitutional rights of tens of thousands of LGBT veterans by failing to grant them honorable discharges before the repeal of “Don’t-Ask, Don’t-Tell”-type polices.

On Thursday, U.S. Magistrate Judge Joseph Spero rejected arguments by the U.S. Department of Defense alleging that the proposed class-action lawsuit should not proceed because the five lead plaintiffs never tried to amend their discharge paperwork through a process established by the agency.

In his ruling, Spero said that requiring LGBT veterans to engage in the “burdensome and even traumatic process” of changing their discharge statuses could violate their constitutional rights to both due process and equal protection.

“The process places the burden on individual veterans to spend months or years obtaining old personnel records before they can even file the applications that will then take months or years to be processed, on top of the years since their discriminatory discharges,” the lawsuit alleges. “The application process is opaque; many veterans must hire lawyers to assist them. Individual veterans are forced to relive the trauma of their discharge, carrying the burden of proving discrimination to the very institution that discriminated against them.”

Reuters notes that military discharges listed as “other than honorable” can have significant repercussions when uncovered through routine background checks—they can bar applicants from receiving subsidized healthcare, obtaining loans, or tuition assistance.

LGBTQ flag. Image via Quote Catalog, Flickr, CC BY 2.0, no changes.

And, in many cases, having an “other than honorable” discharge can also lead veterans to fail employment-related background checks—potentially costing them a job.

“At least as a matter of pleading, these allegations are sufficient to allege conduct that shocks the conscience,” Spero wrote.

Attorneys for the class have since posited the ruling as a step forward.

“These veterans have been forced to carry official yet discriminatory paperwork from the U.S. government that unnecessarily indicates their sexual orientation anytime they try to prove their status as veterans,” attorneys said in a statement.

According to Reuters, an estimated 14,000 former servicemen and women were discharged from the U.S. military for apparent violations of “Don’t-Ask, Don’t-Tell”-type policies, which were only officially revoked in 2011.

The Department of Defense told the court that it has long since established policies to correct “other than honorable” discharges related to veterans’ sexual orientations, and has granted changes in more than 1,400 cases. However, Spero said that the plaintiffs should have a chance to prove, in court, that the requirements needed to receive an adjusted status pose an unconstitutional burden.

“The burdens Plaintiffs allege are not mere inconvenience,” he wrote. “Rather, Plaintiffs highlight aspects of the process that give rise to stigma, re-traumatization, and isolation.”


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