David F. Burrelli Specialist in Military Manpower Policy
December 22, 2010, President Obama signed P.L. 111-321 into law. It called for
the repeal of the existing law (Title 10, United States Code, §654)
barring open homosexuality in the military by prescribing a series of
steps that must take place before repeal occurs. One step was fulfilled on
July 22, 2011, when the President signed the certification of the process
ending the Don’t Ask, Don’t Tell policy, which was repealed on September
20, 2011. However, in repealing the law and the so-called “Don’t Ask, Don’t
Tell” policy, a number of issues have been raised, but were not addressed
by P.L. 111-321. This report considers issues that Congress may wish to
consider regarding matters arising as a result of the repeal of §654.
Under the Constitution, Congress has the authority for making “rules for the
government and regulation” of the military services. It has been suggested
that Congress could hold hearings concerning such matters as the
anticipated changes in other laws regarding military benefits, for example.
Issues for consideration include, but are not limited to, congressional
oversight of the repeal process, differences in benefits and privileges
some individuals may experience (especially differences created under the
Defense of Marriage Act), changes involving sodomy prohibitions, and
efforts by some to expand the repeal to include transgender individuals.
Certain military benefits and privileges are extended to spouses as defined by
law. Under the Defense of Marriage Act, the federal government recognizes
marriage as the union of one man and one woman. However, certain states
recognize same-sex marriages. Thus, it is possible for a same-sex couple
to be legally married but not eligible for certain military benefits and
Laws prohibiting sodomy (defined as “unnatural carnal copulation”) in the
military context have varied over time. There existed proposed language in
the Senate version of the National Defense Authorization Act in the 112th Congress that would remove sodomy from the Uniformed Code of Military
Justice, effectively decriminalizing sodomy. Similar language did not exist in
the House version. This language was not included in the final law.
Instead, use of the term “forced” sodomy has been cited suggesting
violations involving “consensual” sodomy will not be enforced.
The repeal of the ban on homosexual behavior has encouraged some to expand
efforts to end discrimination against transgender individuals. Based on
military fitness policies, individuals who have a history of mental
disorders that, in the opinion of the medical examiner, would interfere with
or prevent satisfactory performance of military duties are not allowed to
serve. Among the disorders cited are “sexual and gender identity
disorders.” (These disorders are listed in the International
Classification of Diseases, 9th Revision,
Clinical Modification or ICD-9-CM, 302.) At one time, homosexuality was
listed as a psychiatric disorder, but this was removed from the Diagnostic
and Statistical Manual (DSM) in 1973. Some have argued that other “gender disorders”
should also be removed. Along these lines, advocates believe it is unfair for
the military to continue to discriminate against these individuals.
Others, however, believe that until the DSM and ICD-9-CM are changed, such
individuals should continue to be barred from serving.
Date of Report: December 21, 2013
Number of Pages: 14 Order Number: R42003 Price: $29.95
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