Military Policy on Gays Issued; Lawsuit Vowed

The Pentagon issued new regulations Wednesday designed to carry out President Clinton’s policy on homosexuals in the military, but gay rights groups immediately denounced the rules as discriminatory and vowed to challenge their constitutionality in court.

The long-awaited specifics, scheduled to take effect fully on Feb. 5, essentially continue the longstanding ban on homosexual activity in the military but prohibit “witch hunts” against suspected gays and mandate more humane handling of such cases.

Defense Secretary Les Aspin, calling the new rules “the right solution,” told reporters that, although there is no guarantee that the new regulations would be in force forever, he believes that there is “a very, very good chance that this policy will work out.”

Administration officials continued to portray the President’s new policy as a major step forward in easing the ban on gays in the military. The plan has been dubbed “Don’t Ask, Don’t Tell, Don’t Pursue”--after the changes that it would make from previous regulations.

But spokesmen for gay rights groups contended that the policy merely continues earlier discrimination against homosexuals in the military and vowed to file suit at the earliest opportunity.

Evan Wolfson, spokesman for the Lambda Legal Defense and Education Fund, which litigates gay rights cases, said his group would soon join the American Civil Liberties Union in filing suit to have the policy declared unconstitutional.

Wolfson said the rules order gay men and lesbians “to undergo different restrictions” from those imposed on heterosexuals in the military and impose “a gag order” on homosexuals by making them subject to discharge if they disclose their sexual orientation.

The new regulations, which had been the subject of intense negotiation since the Administration announced the outlines of its proposal in July, contained little that had not been disclosed previously.

Essentially, recruits no longer will be asked whether they are homosexual, military authorities will not investigate gay men or lesbians on the mere suspicion that they may be homosexual and homosexuals technically will be able to obtain needed security clearances.

Gays still can be discharged from the service if they declare openly that they are homosexual, and the regulations give local unit commanders wide flexibility to decide whether to bring proceedings against those who are found out.

Tanya Domi, legislative director of the National Gay and Lesbian Task Force, said that “fair-minded” unit commanders will be “well-served” by the new regulations, but that those who want to remove homosexuals would have ample opportunity under the rules.

Ironically, the regulations also contain what has become known as the “Klinger” provision, which provides that a member of the military may not be discharged if he or she identifies him- or herself as gay or engages in homosexual acts solely to get out of the military.

The nickname refers to the exploits of fictional Army Cpl. Max Klinger, the character on the “MASH” television show who frequently dressed as a woman in hopes of demonstrating his instability and obtaining an early discharge.

Aspin and Jamie Gorelick, the Defense Department’s general counsel, stressed that the new regulations are designed to apply mainly to cases that emerge after Feb. 5. They said those already in the legal pipeline would be decided on a case-by-case basis.

Gorelick said the Administration still has not decided whether to appeal several recent court rulings that have declared the military’s previous policy toward homosexuals unconstitutional. Critics of the military’s policy said those rulings could imperil Clinton’s new regulations also.

The Justice Department, which handles all such appeals, and the Pentagon have been divided over what tactics to pursue in appealing the rulings. Officials said they expect to decide the issue within a few days.

Here are the basic elements of the new policy:

Compatibility. The military will drop its earlier policy declaring homosexuality incompatible with military service and instead will discharge only those personnel who have engaged in “homosexual conduct.”

However, the definition of such conduct is a broad one that includes anyone who has committed a homosexual act, who marries or attempts to marry a person of the same sex or who openly declares that he or she is homosexual.

Service personnel who state that they are homosexual or bisexual would be allowed to continue in the military only if they can “demonstrate” that they do not engage in homosexual acts or have “a propensity or intent to do so.”

Don’t Ask. Recruits or new officer candidates no longer will be asked about their sexual orientation before they are allowed to join the military--unless authorities receive “independent evidence” that they have engaged in homosexual conduct in the past.

Investigations. The services no longer will launch criminal investigations “solely to determine a service member’s sexual orientation” and normally will not investigate sexual misconduct when the sex act occurs in private between consenting adults.

But they will be able to initiate investigations in cases involving “aggravating circumstances,” ranging from force, coercion and intimidation and sex with persons younger than 16 to abuse of position or rank and “conduct that raises a security concern.”

Any evidence of homosexual conduct would be turned over to unit commanders for fact-finding investigations. The Administration served notice that it wants most such cases to be handled administratively rather than by court-martial, as sometimes was the case before.

Security clearances. Authorities granting security clearances no longer will conduct investigations solely to determine a soldier’s sexual orientation, and homosexuality in itself no longer will be grounds for denying a clearance.

But investigators may push for more information in cases in which a person’s sexual orientation raises the possibility that it may become a security concern--as in the case of a person who is concealing his sexual orientation and therefore might be subject to blackmail.

Notification. Military authorities will take steps to keep all personnel apprised of the new policy when they join the service and in periodic training sessions. They also will seek to train commanders and senior enlisted personnel in how to handle such cases.

Under the new regulations, anyone expelled from the armed forces for engaging in homosexual conduct is still likely to be given an honorable discharge. But the discharge would be “other than honorable” if the case involved the use of force, a minor or a subordinate.

A briefing paper for new recruits defines a homosexual act as “touching a person of your same sex or allowing such a person to touch you for the purpose of satisfying sexual desires”--including “hand-holding or kissing, or other physical contact of a sexual nature.”

The regulations specifically permit homosexuals to engage in “associational activity” such as “going to a gay bar, possessing or reading homosexual publications, associating with known homosexuals or marching in a gay rights rally in civilian clothes.”

In an effort to prevent the kind of violence that has led to the beatings--and, in some cases, the deaths--of some homosexuals in the military, it also warns that “the Armed Forces do not tolerate harassment or violence against any service member, for any reason.”

Aspin said Wednesday that the individual services will be given 30 days to draft regulations of their own to carry out the new policy and the Pentagon then will take another 15 days to review them. The regulations will become final Feb. 5.

The Issue’s Turning Points

A chronology on the issue of homosexuals in the military:

* 1982--The Defense Department formalizes World War II-era policies against allowing homosexuals to serve.

* 1990--Sgt. Perry Watkins wins a 10-year court battle against the Army, which had discharged him in 1981 for homosexuality. The courts found that the Army had inducted Watkins and allowed his re-enlistment three times, knowing he is gay. Watkins eventually agrees to forgo re-entry to the Army in return for $135,000 in back pay, an honorable discharge and full retirement benefits.

* Sept. 29, 1992--Presidential candidate Bill Clinton says, “Yes. I support repeal of the ban on gays and lesbians serving in the United States armed forces.”

* Jan. 29, 1993--After the Pentagon and some members of Congress object to an outright lifting of the ban, President Clinton announces a compromise under which recruits would no longer be asked their sexual orientation. He gives Defense Secretary Les Aspin six months to study the issue and draft an executive order.

* July 19--Clinton issues a “don’t ask, don’t tell, don’t pursue” policy that would allow homosexuals to serve as long as they do not announce their orientation. He calls it “an honorable compromise.”

* Oct. 8--A federal appeals court upholds a judge’s order banning discrimination against gays in the military, in the case of naval Petty Officer Keith Meinhold. He was discharged in August, 1992, after disclosing his homosexuality on national television. The court concluded that the Pentagon policy was not an absolute ban and would allow a homosexual to remain in the military if the person showed that he or she could “live by the rules” and had no propensity to engage in homosexual conduct.

* Oct. 30--Supreme Court allows the Pentagon to remove open homosexuals from active duty while it appeals the Meinhold decision.

* Nov. 16--A federal appeals court in Washington orders the Navy to give a diploma and officer’s commission to Joseph Steffan. Steffan had been forced to resign from the U.S. Naval Academy in 1987, six weeks before graduation, because he told the commandant that he is gay. The Administration has not said whether it will appeal.

* Dec. 16--Meinhold re-enlists in the Navy.

* Dec. 22--The Pentagon outlines regulations for the armed services to enforce the new policy on homosexuals.

Source: Associated Press