The Repeal of “Don’t Ask, Don’t Tell”: Issues for Congress

David F. Burrelli
Specialist in Military Manpower Policy

On December 22, 2010, President Obama signed P.L. 111-321 into law. It calls 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2011, when the President signed the certification of the process ending the Don’t Ask, Don’t Tell policy, which will be repealed on September 20, 2011.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 as the repeal process proceeds.

Under the Constitution, Congress has the authority for making “rules for the government and regulation” of the military services. Legislation has been proposed in the 112th Congress that could affect the repeal process by requiring the certification of the repeal by all members of the Joint Chiefs of Staff and not just the Chairman, as is currently the case. It has also been suggested that Congress could hold hearings before or after the final repeal occurs concerning such matters as the repeal process and 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 privileges.

Laws prohibiting sodomy (defined as “unnatural carnal copulation”) in the military context have varied over time. Currently, there exists 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 de-criminalizing sodomy. Similar language does not exist in the House version.

The repeal of the ban on homosexual behavior has encouraged some to expand efforts to end discrimination against so-called “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: September 14, 2011
Number of Pages: 13
Order Number: R42003
Price: $29.95

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