Next steps for ‘don’t ask, don’t tell’


A vote in the Senate on Saturday cleared the way to abolish the Pentagon’s “don’t ask, don’t tell” policy. But questions remain about how the change will be implemented, and it will be months before gays and lesbians can serve openly in the military.

What happens next?

President Obama is expected to sign the measure this week.

The president, secretary of Defense and chairman of the Joint Chiefs of Staff must then sign a letter certifying that the necessary policy and regulation changes have been prepared and that implementation of the changes won’t hurt the military’s readiness, effectiveness, recruiting, retention or unit cohesion.


The new policy takes effect 60 days after the certification letter is transmitted to the congressional Armed Services committees.

Can service members still be discharged for being gay?

Until the repeal takes effect, gay and lesbian service members can still be discharged because of their sexual orientation. But Defense Secretary Robert M. Gates has said that only the secretaries of the Army, Navy and Air Force have the authority to take such action in consultation with the Pentagon’s top lawyer and the undersecretary of Defense for personnel and readiness.

What effect will the congressional action have on pending lawsuits?

Legal experts believe the government will ask the courts to put a hold on cases brought by former service members who were discharged under “don’t ask, don’t tell” because the policy is being repealed.

“That’s been one of their big arguments during litigation … and I think judges will do that,” said Douglas NeJaime, an associate professor at Loyola Law School and an expert in sexual orientation law. “But if implementation is dragging on and on, and let’s say the repeal doesn’t happen in the next year, I don’t think it would be unreasonable for lawyers to go back into court and say our clients’ constitutional rights continue to be violated.”


Will people who were discharged for being gay be allowed back into the military?

The bill does not address this question. But a Pentagon study released in November recommended that individuals who were discharged solely on the basis of “homosexual conduct” be considered for reentry, provided they meet all other requirements.

Will changes be made to living quarters?

The Pentagon study recommends against creating separate bathrooms and living quarters for gay service members, saying that doing so would be impractical and stigmatize some members. But it says commanders should retain the authority to make adjustments in individual cases, such as installing shower curtains to address privacy concerns or changing room assignments.

What kind of benefits will be available to service members in same-sex marriages?

The Pentagon study recommends that for now, service members who are not in a federally recognized marriage should be treated as single for the purposes of benefits eligibility. But it says the department should revisit the issue.