Now that Congress has passed the repeal of “don’t ask, don’t tell,” which banned openly gay troops from serving in the armed forces, the Pentagon must figure out how, precisely, to devise regulations governing the lives and service of homosexual members of the armed forces.
In the months ahead, the military will be grappling with questions like whether there should be separate bathroom facilities for homosexual soldiers, for example, and whether same-sex partners will have the right to the same benefits that heterosexual spouses do. These include everything from the privilege of shopping at base grocery and department stores (where goods are generally cheaper and sales are tax-free) to living in base housing and access to health care.
Some of these decisions will be less tricky – and less fraught – than others. In the category of, say, "particularly complex" is whether gay troops will be eligible for the cash housing allowances that married soldiers get, but that single soldiers with live-in girlfriends or boyfriends do not.
The matter of same-sex bathrooms is far more straightforward, according to the recommendations of the military leaders who headed up the Pentagon’s recent study on attitudes towards gay troops serving openly in the military. “In the course of our review, we heard from a very large number of service members about their discomfort with sharing bathroom facilities or living quarters with those they know to be gay or lesbian,” the report’s authors conceded. “Some went so far to suggest that a repeal of Don’t Ask, Don’t Tell may even require separate bathroom and shower facilities for gay men and lesbians.”
'More harm than good'
The task force study’s leaders, Gen. Carter Ham and Jeh Johnson, the Pentagon’s top lawyer, agreed on their response to this particular request – that separate bathroom facilities “would do more harm than good” and would be impractical to enforce. “The creation of a third and possibly fourth category of bathroom facilities and living quarters, whether at bases or forward deployed areas, would be a logistical nightmare, expensive, and impossible to administer,” they wrote.
What’s more, even if such segregated bathrooms were logistically feasible, “Separate facilities would, in our view, stigmatize gay and lesbian service members in a manner reminiscent of ‘separate but equal’ facilities for blacks prior to the 1960s.”
At times, the study’s recommendations on how to handle various situations arising from repeal of the law have been cause for some humor in the Pentagon halls for their specificity. “Common sense tells us that a situation in which people of different anatomy shower together is different from a situation in which people of the same anatomy but different sexual orientations shower together. … As one gay former service member told us, to fit in, co-exist, and conform to social norms, gay men have learned to avoid making heterosexuals feel uncomfortable or threatened in these situations.”
The study concludes, however, that commanders can “retain the authority they currently have to alter berthing or billeting assignments or accommodate privacy concerns on an individualized, case-by-case basis, in the interests of morale, good order and discipline.”
Impact of other laws
There are, too, current laws that prevent the partners of gay troops from having the same benefits of spouses, even if the homosexual couple is legally married in a state that allows it. The Defense of Marriage Act, for example, defines marriage to mean “only a legal union between one man and one woman as husband and wife” and spouse to mean “only a person of the opposite sex who is a husband or wife.”
As a result, according to the Pentagon study, “under current law, full benefit parity between spouses of heterosexual service members and same-sex partners of gay and lesbian service members in committed relationships is legally impossible.”
Specifically, for example, cash housing benefits for soldiers living off-base “are statutorily defined in a way that does not allow extension to any same-sex relationship.” Though service members who have spouses are entitled to “significantly higher” allowances if they have “dependents,” a dependent is also defined by law, the Pentagon study points out, and is limited to children, dependent parents, and a “spouse,” which under the federal Defense of Marriage Act must be a person of the opposite sex.
Likewise, military health-care benefits for same-sex partners “are legally limited in the same way, because coverage is for ‘dependents’ and that term is defined by law.”
The Pentagon’s study “simply cannot recommend” that the Defense Department extend these housing benefits to same-sex couples, “because it would be legally impermissible to do so.” Nor did the task force, as a result, address the “fiscal implications of extending these types of benefits.”
But there may be more changes on the horizon that overturns current law and may force the military to readdress many of these issues even as it begins implementing the law in the months to come. In July, a federal district court in Boston declared the Defense of Marriage Act unconstitutional. That case, the Pentagon study points out, is currently under appeal.